HKSAR v. WONG CHUN KI (also known as WONG KI)

DCCC 783/2022

[2023] HKDC 809

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 783 OF 2022

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REASONS FOR SENTENCE

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A. Charges

1.  The Defendant (D)  pleaded guilty to:

Charge 1 of Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134.

Charge 2 of Taking conveyance without authority, contrary to section 14(1)  of the Theft Ordinance, Cap. 210.

Charge 6 of Using a motor vehicle without third party insurance, contrary to section 4(1)  and (2)(a)  of the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap. 272.

Charge 7 of Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134.

Charge 8 of Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134.

2.  He pleaded not guilty to Charges 3 to 5 which are left on court’s file and cannot be proceeded with without court’s leave.

3.  Particulars of Charge 1 are that D, on 24^th July 2021, in a private car bearing registration mark XJ8932, outside Shun Yat House, Yat Tung (II)  Estate, Tung Chung, New Territories, unlawfully trafficked in a dangerous drug, namely 4.06 grammes (g)  of a solid containing 3.35 g of cocaine.

4.  Particulars of Charge 2 are that D, on 24^th July 2021, in Hong Kong, without the consent of the owner or other lawful authority, took a conveyance, namely a private car bearing registration mark XJ8932, for his own use.

5.  Particulars of Charge 6 are that D, on 24^th July 2021, in Hong Kong, used a motor vehicle, namely a private car bearing registration mark XJ8932 on a road when there was not in force in relation to the user thereof such a policy of insurance or such a security in respect of third party risks as required by the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap. 272.

6.  Particulars of Charge 7 are that D, on 27^th April 2022, at the junction of Sha Tsui Road and Chung On Street, Tsuen Wan, unlawfully trafficked in a dangerous drug, namely 35.6 g of a solid containing 25.86 g of cocaine.

7.  Particulars of Charge 8 are that D, on 27^th April 2022, in a private car bearing registration mark XD3742, at Luen Yan Street outside Block 2 of Harmony Garden, Tsuen Wan, unlawfully trafficked in a dangerous drug, namely 3.63 g of a solid containing 2.71 g of cocaine.

B. Facts

8.  D admitted the following facts.

B.1. Charges 1, 2 and 6

9.  At around 1737 hours on 24^th July 2021, police officers were patrolling outside Shun Yat House, Yat Tung (II)  Estate where they intercepted XJ8932 being driven by D with PHUSAKAEW Siraphrapha on board.  Upon search on XJ8932:-

(a)  a coin bag consisted of 3 plastic bags with 0.95 g of a solid containing 0.83 g of cocaine was found in the door compartment next to the driver seat;

(b)  10 plastic bags with 3.11 g of a solid containing 2.52 g of cocaine were found under the driver seat near the door; and

(c)  2 transparent resealable plastic bags consisted of 195 transparent resealable plastic bags were found inside the trunk.

10.  At the material times, D held a learner’s driving licence valid between 28^th September 2020 to 27^th September 2021.

11.  Under arrest and caution at the scene, D admitted that:

(a)  he would sell the abovementioned cocaine for $400 per small bag; and

(b)  XJ8932 belonged to his friend, Yeung Kick-man, Dicky, and was taken by D without Yeung’s permission.

12.  In a cautioned video-recorded interview, D said that:

(a)  he knew that Yeung would park XJ8932 on Chai Wan Kok Street, Tsuen Wan, and put the car key on the nearside front wheel.

(b)  D had previously requested to borrow XJ8932 from Yeung but was declined. On 24^th July 2021, D made the same request again through WhatsApp with no reply. Yeung did not know that D had taken XJ8932.

(c)  D picked up PHUSAKAEW from Tsing Lung Tau and then drove to Tung Chung to sell dangerous drugs.

(d)  D had purchased 13 bags of the subject cocaine in Tsuen Wan on 23^rd July 2021 from an unknown male for $1,300. He planned to re-sell for $300 per small bag after repacking with the resealable plastic bags seized by police.

(e)  D did not purchase any third party insurance for XJ8932.

13.  According to Yeung:

(a)  he habitually parked XJ8932 in Chai Wan Kok Street, Tsuen Wan, and placed the car key on the nearside front wheel for convenience;

(b)  he last parked the car on 23^rd July 2021, and put the car key on the nearside front wheel;

(c)  he did not permit D to drive it; and

(d)  he would not have allowed D to drive his vehicle had he known that the latter held no valid driving licence.

14.  The street value of the cocaine mentioned above was $3,400.25 in September 2021.

15.  XJ8932 was covered by a third party risk insurance as at 24^th July 2021 for insured driver, i.e. Yeung and any other person who was driving on his order or with his permission.

B.2. Charges 7 and 8

16.  At around 0205 hours on 27^th April 2022, police officers were on patrol on board an emergency unit vehicle, and they noticed XD3742 travelling at over 80 km/h along Castle Peak Road – Tsuen Wan Bound. The officers flashed the lights of their police vehicle and gave chase.  XD3742 did not stop but sped off.  When it got to outside Harmony Garden on Luen Yan Street, D and PHUSAKAEW fled from the front passenger seat and the driver seat respectively.  

17.  D was intercepted at the junction of Chung On Street and Ho Pui Street.  2 plastic bags containing (a)  11.7 g of a solid containing 8.46 g of cocaine and (b)  23.9 g of a solid containing 17.4 g of cocaine were found in the left front pocket of his shorts.

18.  11 plastic bags containing 3.63 g of a solid containing 2.71 g of cocaine were found in the door compartment next to the passenger seat.

19.  D was arrested for trafficking in a dangerous drug.  Under caution, he said, “I intended the drug found on my person for self-consumption, while those found in the car was for sale to friends.”

20.  In a cautioned video-recorded interview, D said:

(a)  on 27^th April 2022, he asked PHUSAKAEW to drive him to Tak Wah Park to buy cocaine from Ah Ming for $35,000;

(b)  when XD3742 was intercepted by the police, he told PHUSAKAEW to drive away;

(c)  then they left the car and fled in different directions; and

(d)  the drugs found on him was for his own consumption, while the 11 plastic bags found in XD3742 was to be sold to Ah Keung for $5,000.

21.  The street value of all the dangerous drugs seized on 27^th April 2022 was $70,423 in April 2022.

22.  D possessed all the drugs involved in Charges 1, 7 and 8 for the purpose of trafficking.

C. Criminal record

23.  D has 5 previous cases and 11 convictions in total from 2010 to 2018. He has the same record as Charges 1, 7 and 8, i.e. trafficking in a dangerous drug, in 2017 for which he was sentenced to 4 years’ imprisonment.

D. D’s background

24.  D was born and educated to F.3 in Hong Kong.  He is aged 27, single and unemployed.

E. Mitigation

E.1. Charges 1, 7, 8

25.  For Charges 1, 7 and 8, the sentencing guidelines are 2 to 5 years’ imprisonment for up to 10 g of cocaine; and 5 to 8 years for between 10 and 50 g (HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437).

26.  Defence submitted that the following starting points are mathematically correct:

(a)  Charge 1 involving 3.35 g, 36 months’ imprisonment;

(b)  Charge 7 involving 25.86 g, 74.27 months; and

(c)  Charge 8 involving 2.71 g, 33.75 months.

27.  P agreed with all these starting points.

28.  In addition to having a previous same record as these three charges, D also committed Charges 7 and 8 while on police bail for the other charges.  Defence agreed that these matters amount to aggravating factors which warrant enhancement of sentence.

E.2. Charges 2, 6

29.  Defence referred to HKSAR v Lam Ka Ki [2023] HKDC 395 in which the defendant committed, inter alia, taking conveyance without authority and using a motor vehicle without third party insurance, the same as Charges 2 and 6 respectively.  For the former offence, the court found that the defendant took the conveyance for committing serious offence relating to dangerous drugs.  Meanwhile, that defendant had 3 previous same convictions of taking conveyance without authority, and was sentenced to a total of 8 months’ imprisonment for two of the convictions. Thus, the court adopted a starting point of 12 months’ imprisonment. Regarding the offence of using a motor vehicle without third party insurance, that defendant also had previous similar convictions.  The court adopted a starting point of 6 months’ imprisonment.  The two sentences were ordered to run concurrently.

30.  Defence also referred to HKSAR v Ng Tak Yin DCCC 1148/2016 in which the defendant stole a taxi and drove it away.  He was charged with, among others, using a motor vehicle without third party insurance.  The court adopted a starting point of 3 months’ imprisonment. It also disqualified the defendant for 12 months.

31.  Defence asked this court to adopt similar approaches as those in the above 2 cases.

E.3. Totality

32.  Defence cited 香港特別行政區 訴 黃國健 [2018] HKDC 349 in which the defendant was convicted of 1 charge of conspiracy to traffic in a dangerous drug and 1 charge of trafficking in a dangerous drug. The 2 charges took place in two separate incidents about a year apart.  In terms of totality, the court considered a starting point that reflected the aggregate amount of drugs involved in both charges by reason of the defendant being 22 years old and having no previous similar record.  The Defence submitted that a similar approach can be taken in the present case.

F. Sentence

F.1. Individual charges

33.  For Charge 1, I agree with parties that a starting point of 36 months’ imprisonment is appropriate.  I enhance the sentence by 3 months to 39 months due to D’s previous same record.  The only mitigating factor is his guilty plea.  Thus, D is sentenced to 26 months’ imprisonment.

34.  For Charge 2, although a starting point of 12 months’ imprisonment was adopted for the same offence in Lam Ka Ki, that defendant had 3 previous same convictions; whereas D in the present case has none.  Therefore, I am of the view that 10.5 months’ imprisonment is sufficient to reflect the criminality of D.  The only mitigating factor is his guilty plea.  Thus, D is sentenced to 7 months’ imprisonment.

35.  For Charge 6, D also has no previous similar record, unlike the defendant in Lam Ka Ki. Considering Ng Tak Yin, I adopt a starting point of 3 months’ imprisonment.  The only mitigating factor is his guilty plea.  Thus, D is sentenced to 2 months’ imprisonment.  There is no special reason to disqualify him for less than 12 months.  Thus, he is disqualified from holding or obtaining a driving licence for all classes of vehicles for 12 months.

36.  For Charge 7, I agree with parties that a starting point of 74 months’ imprisonment is appropriate.  I enhance the sentence by 4 months to 78 months due to his commission of the offence while on bail. D said under caution that the drugs were for self-consumption.  However, this version was not maintained in mitigation.  Moreover, D admitted the facts that he possessed all the drugs for the purpose of trafficking.  Therefore, I would not consider that any part of the drugs was for self-consumption. The only mitigating factor is D’s guilty plea.  Thus, he is sentenced to 52 months’ imprisonment.

37.  For Charge 8, I agree with parties that a starting point of 33.75 months’ imprisonment is appropriate.  I enhance the sentence by 2.25 months to 36 months due to his commission of the offence while on bail.  The only mitigating factor is D’s guilty plea.  Thus, he is sentenced to 24 months’ imprisonment.

F.2. Total for Charges 2 and 6

38.  Charges 2 and 6 are both concerned with vehicle and they arose from the same incident, therefore their sentences should run concurrently.  Hence, D is sentenced to 7 months’ imprisonment and disqualified for 12 months for the 2 charges.

F.3. Total for Charges 1, 2 and 6

39.  Although Charges 1, 2 and 6 arose from the same incident, the nature of Charge 1 is different from the other 2 charges.  Charge 1 is also much more serious.  Thus, the sentences should not run totally concurrently. Having considered totality, I order that 4 months’ imprisonment for Charges 2 and 6 is to run consecutively to the sentence for Charge 1. Therefore, the total sentence for the 3 charges is 30 months’ imprisonment.

F.4. Total for Charges 7 and 8

40.  Charges 7 and 8 are of the same nature and they arose from the same incident, therefore their sentences should be considered together. The total amount of the drugs involved in both charges is 28.57 g.  The starting point on a mathematical assessment would be just under 77 months’ imprisonment.  An enhancement of 4 months for D’s commission of the offences while on bail would result in a sentence of 81 months.  A reduction of 1/3 for his guilty plea would bring it to 54 months. I am of the view that this is appropriate for the total sentence for Charges 7 and 8. Thus, I order that 2 months’ imprisonment for Charge 8 to run consecutively to the sentence for Charge 7, resulting in a total of 54 months’ imprisonment for the 2 charges.

F.5. Total for all charges

41.  Defence suggested that for Charges 1, 7 and 8, the court may adopt a starting point which reflects the total amount of all the drugs involved.  However, this is not the correct approach. According to HKSAR v Ng Yau Kau and Another CACC 374/2007, where there are separate incidents of trafficking, it is not just the totality of drugs in the defendant’s possession which goes to the overall criminality of the offence, but also the separate acts of trafficking.  The correct approach is to take into account matters pertaining to the totality of sentence and arrive at a proper totality by ordering the sentences to be served at least partly concurrently.

42.  Moreover, the court in R v Tong Hoi Fung [1988] 1 HKLR 610 held that where there are more than one offence of a similar nature committed at different times, it is right to impose a higher sentence than if there had been only one offence.  Also, according to R v Kwok Chi Keung [1993] 2 HKCLR 294, the greater degree of criminality manifested by repeated breaches of the law should be visited by more severe punishment than that inflicted for a single offence.

43.  In addition, in this case, Charge 1 should not be considered in isolation from Charges 2 and 6 since the 3 charges arose from the same incident.

44.  Having considered totality, I am of the view that a global sentence of 72 months’ imprisonment for this case is appropriate.  Thus, I order that 18 months’ imprisonment for Charges 1, 2 and 6 to run consecutively to the sentence for Charges 7 and 8, resulting in a total of 72 months’ imprisonment for all charges.

F.6. Summary

45.  Accordingly, the following sentences are imposed:

Charge 1: 26 months’ imprisonment

Charge 2: 7 months’ imprisonment

Charge 6: 2 months’ imprisonment and 12 months’ disqualification

Charge 7: 52 months’ imprisonment

Charge 8: 24 months’ imprisonment

46.  The sentences for Charges 2 and 6 are to run concurrently, so the total sentence for the 2 charges is 7 months’ imprisonment and 12 months’ disqualification.

47.  4 months’ imprisonment for Charges 2 and 6 is to run consecutively to the sentence for Charge 1, resulting in a total of 30 months’ imprisonment for Charges 1, 2 and 6.

48.  2 months’ imprisonment for Charge 8 is to run consecutively to the sentence for Charge 7, resulting in a total of 54 months’ imprisonment for Charges 7 and 8.

49.  18 months’ imprisonment for Charges 1, 2 and 6 is to run consecutively to the sentence for Charges 7 and 8, resulting in a total of 72 months’ imprisonment for all charges.