HKSAR v. TANG KA YUNG(鄧家勇)

DCCC 1156/2021

[2022] HKDC 1477

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1156 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two charges: -

(a)  trafficking of dangerous drugs namely 4.76 grammes of a solid containing 4.55 grammes of cocaine and 6.03 grammes of a solid containing 4.9 grammes of ketamine.

(b)  Driving a motor vehicle with a concentration of 0.60 microgramme of benzoylecgonine (a metabolite derived from cocaine)  and traces of ecgonine methyl ester (a metabolite derived from cocaine).

2.  On 19 July, 2021, at around 10:10pm, the police found the defendant was unconscious in the driver seat of a private vehicle which was parked on a road side in Chiu Ling Road.

3.  The police woke up the defendant who furtively placed one hand on the steering wheel and tried to start the vehicle with his other hand.  The police stopped the defendant from driving away.

4.  The police searched the private vehicle which contained the dangerous drugs as particularized in the charge. 

5.  In the storage compartment of the door found 13 plastic bags containing 4.23 grammes of cocaine.  

6.  In the storage compartment in front of the handbrake found one HK$20 banknote folded into a packet containing 0.32 grammes of cocaine. 

7.  In other storage compartment found: -

(a)  8 plastic bags containing 4.55 grammes of ketamine; and

(b)  one plastic bag containing 0.35 grammes of ketamine.

8.  There were also $13,000 found in the storage compartment behind the handbrake.

9.  The blood sample taken from the defendant on the same day in Tseung Kwan O Hospital was found by the government chemist that contained the dangerous drugs as stated in the particular of the charge 2. 

10.  In the record of interview, the defendant said: -

(a)  The dangerous drugs found in the vehicle belonged to him.

(b)  He intended to sell the dangerous drugs to earn some money.

(c)  He was sleeping in the vehicle at the material time.

(d)  As to the ketamine found inside the $20 note was for his self consumption.

(e)  He purchased a total of 12 grmames of cocaine for $4000 and 12 grammes of ketamine for $4,000.

(f)  He intended to sell each packet of cocaine for $500 and ketamine for $450.

(g)  He said that the $13,000 found in the storage compartment was his earnings by delivery of goods.

11.  In his second record of interview taken on 20 July 2021, the defendant said that: -

(a)  He began driving at around 10am on that day.

(b)  He took cocaine on a daily basis by smoking a cigarette with cocaine. His last dosage was around midnight on the 18 July 2021 on the staircase outside his home.

12.  The total street value of the dangerous drugs was around HK$10,159.

13.  The car owner confirmed that the private vehicle was rented to the Defendant on 13 July 2021 for a monthly rent of $5,500.

MITIGATION / PERSONAL BACKGROUND

14.  The defendant is 27 years old.  He has separated from his wife in 2019. His 5 years old son is now living with his ex-wife. 

15.  He has been unemployed since June 2021 due to the onset of the pandemic.

16.  The defence said that a small portion of the cocaine was for his self consumption and asked this court to exercise discretion to reduce a couple of months from the final sentence.

SENTENCE

Charge 1

17.  There were 2 types of dangerous drugs involved in charge one, they were cocaine and ketamine. 

18.  The sentencing guideline for cocaine can be found in R v Lau Tak Ming [1990] 2 HKLR 370, trafficking in 4.55 grammes of cocaine calls for a sentence of 3 years and 4 months

19.  As to ketamine, the case of SJ v Hii Siew Cheng [2009] 1 HKLRD 1 applies, for a narcotic content up to 10 grammes, it falls into the sentencing bracket of 2 to 4 years. 

20.  In the present case, trafficking in a 4.9 grammes of ketamine attracts a sentence of 2 years and 10 months.

21.  Since the individual approach will result in an oppressive sentence, the combine approach will be adopted for the present case.

22.  As the defence agreed that cocaine is more potent than ketamine, the calculation of the 3 tests should take cocaine as the base drug.

23.  The result of the calculations for the 3 tests are: -

(a)  The absurdity test is 58 months (4 years 10 months);

(b)  The conversion test is 50 months (4 years 2 months); and

(c)  The ratio test is 52 months (4 years 4 months).

24.  Taking the above calculation into account, I take 3 years 4 months as the starting point and increase the starting point by one year to 4 years 4 months.  Given ⅓ discount, the sentence is 37 months. 

25.  Now I come to deal with the level of enhancement.

26.  As we have discussed during the mitigating advanced by the defence that there were aggravating factors presented in charge 1, I referred to HKSAR v Choy Wing Sing [2022] HKCA 381: -

(a)  The trafficking involved 2 types of drugs which would have catered for a wider market;

(b)  Ketamine is commonly used with another drug to prolong its effect; and

(c)  The drugs were contained in packets for ready distribution to a large number of users.

27.  I considered the starting point should be enhanced by 6 months. 

28.  The defence also invited this court to exercise discretion to give a “a little discount of a couple of months on the sentence” as –

(a)  The narcotic content of the cocaine was only a small quantity;

(b)  The $20 banknote contained 0.32 grammes of cocaine and this was for his self consumption;

(c)  He had a habit of taking cocaine;

(d)  He also mentioned it under caution; and

(e)  He trafficked the drugs to pay for his drug consumption.

29.  The defence also confirmed that the defendant would not give evidence on this claim of self-consumption.

30.  What was important to note that the defence conceded that it did not amount to a “significant proportion” of the drugs involved. 

31.  As such, according to the decision of HKSAR v Cheung Wai Man [2019] HKCU 176 that the defendant is not entitled to any reduction of sentence in charge 1.

32.  To this end, I refused to exercise my discretion to reduce the starting point as asked by the defence.

Charge 2

33.  I now turn to charge 2, that is the drug driving charge.

34.  The maximum sentence for s 39K(1)  of the Road Traffic Ordinance, Cap 374 is one of 3 years’ imprisonment plus a disqualification period. 

35.  There is no sentencing guideline for s 39K(1)  offence. 

36.  The defendant obtained his driving licence in 2016.  The prosecution confirmed that this is the first conviction of drug driving for the defendant.

37.  As stated in the case of Secretary of Justice v Chan Hon Hoi [2011] HKCU 83 that: -

“Driving under the influence of drugs is a clear danger on the roads and must be deterred in order to protect the public at large.”

“Drivers who knowingly drive a car whilst under the influence of drugs must expect a heavy sentence.”

38.  In the present case, the police found the defendant being unconscious on the driver seat at about 10pm.  The defendant parked his car on a road side and slept.  When the police padded on his shoulder, he woke up with a sudden jerk and furtively placed one hand on the steering wheel and tried to start the vehicle with his other hand.

39.  The defendant must have known that he had taken drugs and he was tired at that time.  It was an irresponsible attitude to drive in such a physical condition as he might cause car accident. 

40.  His car also contained some dangerous drugs as mentioned in charge 1.  The whole purpose of driving that car was to deliver them to the end users.  This is an aggravating factor. 

41.  Against this background, I disagree with the defence of a 6 months as a starting point.  I consider that a starting point of 12 months is appropriate to reflect the gravity of the offence.  Given his guilty plea, it comes down to 8 months.

42.  I also order the defendant to be disqualified from driving all types of vehicles for a period of 2 years.

43.  He is also ordered to attend a driving improvement course under s 72A(1A)  of the Road Traffic Ordinance. 

TOTALITY

44.  I order 4 months from charge two to run consecutively to charge one.  The total sentence is 41 months.