HKSAR v. WONG HAU LUN

DCCC 1117/2021

[2022] HKDC 1367

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1117 OF 2022

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to 2 counts of “Trafficking in a dangerous drug”, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

Admitted summary of facts

2.  On 3 August 2021 at around 2315 hours, PC 24149 and another officer were patrolling outside Metropark Hotel Mong Kok, 22 Lai Chi Kwok Road Mong Kok Kowloon (the Hotel), when PC 24149 saw the Defendant walking out of the Hotel.  The Defendant acted furtively upon noticing the officers.  PC 24149 thus intercepted the Defendant, who began shaking and averting his glance.  Upon preliminary search, a key card to the Hotel (E13)  was found in the left front pocket of the Defendant’s pants.  The Defendant claimed to be staying at room 1343 of the Hotel.

3.  Due to the Defendant’s furtive demean our, a more thorough body search was arranged.  At 2345 hours, police vehicle number AM7252 (the Vehicle)  arrived at the scene.  PC24149 escorted the Defendant onto the Vehicle.  The Defendant refused to be further searched, but admitted that he had hidden drugs in his underwear.  The Defendant then took out two balls of white tissue paper from the underwear he was wearing.

4.  PC24119 unwrapped a ball of tissue paper (E5)  and discovered 3 resealable plastic bags (E1)  each containing white solids.  He then unwrapped the other ball of tissue paper (E6)  and discovered another three resealable plastic bags (E2)  each containing white solids.

5.  At 2350 hours, on the Vehicle which was parked outside the Hotel, PC24119 arrested the Defendant for “Possession of Dangerous Drugs”.  Under caution, the Defendant claimed that they were for his own consumption.  He explained that he had some “Coke” in his room, and asked for a chance（阿Sir，呢啲我係自己食㗎，我房上面仲有少少可樂，可唔可以比次機會）.

6.  At 2358 hours, PC24119 escorted the Defendant to room 1343 of the Hotel. PC24119 tried to open the door with the key card found on the Defendant (E13), but was unsuccessful.  The door to room 1343 was opened with a spare card from the Hotel staff.  After entering room 1343 of the Hotel, the following was found:

i. 1 large resealable plastic bag, containing 7 resealable plastic bags, containing white solids (E7);

ii. 1 resealable plastic bag containing white solids (E3);

iii. 1 plastic dish containing white solids (E4);

iv. 1 electronic scale (E9);

v. 1 pair of scissors (E10);

vi. 2 resealable plastic bags (E15 and E16);

vii. 2 lighters (E11 and E12);

viii. 1 card (E17);

ix. 2 key cards of the Hotel (E14).

7.  At around 2359 hours, PC24149 arrested the Defendant for “trafficking in a dangerous drug”.   Under caution, the Defendant claimed that the coke was cheaper to buy in one go, and that he had purchased the same for his own consumption（阿Sir，啲可樂我一次過買會平啲，我買來自己慢慢食㗎）.

8.  Apart from confirming that he had purchased the drugs from Kowloon Park, reiterating that the drugs were for his own consumption and explaining that he regularly took drugs, the Defendant remained silent in his cautioned video recorded interview on 4 August 2021 between 1233 and 1244 hours.

9.  E1-2, 3-4 and 7 were subsequently sent to the Government Laboratory for examination and were identified in a Government Chemist Certificate dated 23 August 2021 (GCC)  as follows:

E1 3 plastic bags containing a total of 0.87 grammes of a solid containing 0.73 grammes of cocaine;

E2 3 plastic bags containing a total of 0.85 grammes of a solid containing 0.73 grammes of cocaine;

E7 7 Plastic bags containing a total of 1.48 grammes of a solid containing 1.25 grammes of cocaine;

E3 1 plastic bag containing 0.08 grammes of a solid containing Ketamine;

E4 1 plastic bag containing 20.4 grammes of a solid containing 17.8 grammes of cocaine.

10.  In respect of Charge 1, the estimated street value of 1.72 g crack cocaine found in the Defendant’s underwear (E1 and E2)  was around HK$2,518.

11.  In respect of Charge 2, the estimated street value of 21.88 grammes crack cocaine and 0.08 grammes ketamine found in room 1343 of the Hotel was around HK$32,090.

12.  In relation to Charge 1, the Defendant on 3 August 2021, outside ground floor of the Hotel, had unlawfully trafficked in a dangerous drug, namely 1.72 grammes of a solid containing 1.46 grammes of cocaine.

13.  In relation to Charge 2, the Defendant on 3 August 2021, in room 1343 of the Hotel, had unlawfully trafficked in a dangerous drug, namely 21.88 grammes of solids containing 19.05 grammes of cocaine and 0.08 grammes of a solid containing Ketamine.

The Defendant’s Background

14.  The Defendant is 37 years old and has a clear record.  He is divorced and has a 6-year-old son.  Prior to his remand, he lived with his parents.  He was a warehouse worker and earned $15,000 per month.

Sentence

15.  Trafficking in dangerous drugs is a very serious offence, for which the Court of Appeal has laid down sentencing guidelines.  Cocaine is equated to heroin and the guidelines are set out in R v Lau Tak Ming [1990] 2 HKLR 370.  The guidelines relevant to the present case are:

Up to 10 grammes: 2 to 5 years;

Between 10 to 50 grammes: 5 to 8 years

16.  According to those guidelines, the starting point for Charge 1 (1.46 grammes of cocaine)  would be 2 years and 5 months’ imprisonment.  For Charge 2, the starting point would be 5 years and 8 months’ imprisonment.

17.  Apart from cocaine, the Defendant also admitted to trafficking in 0.08 grammes of Ketamine.  Under the guidelines in S of J v Hii Skew Cheng [2009] 1 HKLRD 1, the sentence for trafficking in up to 1 gramme of ketamine is within the court’s discretion.  The starting point for trafficking in 1 to 10 grammes of ketamine is 2 to 4 years.  Although the quantity itself would have little impact on the sentence, trafficking in a cocktail of drugs is an aggravating factor: HKSAR v Wan Lau Mei [2014] 4 HKC 75, 85; HKSAR v Law Nim Chun [2014] 5 HKLRD 500 at paragraphs 19 and 20; HKSAR v Butt Muhammad Gulzar [2020] HKCA 597 (CACC 205/2019, 17 July 2020).

Mitigation

18.  The Defendant alleges that his mother was diagnosed with cancer in 2016 whilst his father had a stroke in 2017.  Firstly, there was nothing to suggest that the Defendant takes care of his parents.  Even if he did, it is trite law that family circumstances (unless they are exceptional)  do not amount to mitigation in respect of serious offences.  Counsel admitted that the Defendant’s family circumstances are not exceptional.

19.  Initially, the Defendant alleged that 10 grammes of the cocaine were for his own consumption, as he consumed 6 to 8 grammes per day.  When it was pointed out that the alleged dosage would be lethal and his allegation was incommensurate with his earnings, the Defendant alleged that he consumed 2 to 3 grammes per day.

20.  In Wong Suet Hau [2002] 1 HKLRD 69, the court addressed the situation where a claim is made that some of the drugs are intended for self-consumption, but the quantity of consumption cannot be discerned.  If it is claimed that a “significant proportion” of the drugs are intended for self-consumption, it may make a difference to sentence and the court should address the issue. 

21.  Chow Chun Sang [2012] 2 HKLRD 1121 suggests a range of discount between 10% to 25%, but only where the threshold of “significant proportion” is met.  Even if the threshold is met, Wong Suet Hau (supra)  makes it clear that a discount in the range of 10% to 25% is not automatic.  The threshold for self-consumption is whether “all or a significant proportion” of the drugs are intended for a defendant’s own consumption. 

22.  The assertion of 2 to 3 grammes for self-consumption does not meet the above mentioned threshold.  In any event, even if the Court were to accept that assertion, it would still be required to consider the latent risk of that 2 to 3 grammes passing into the hands of others.  Counsel conceded that it would make little, if any difference to the ultimate sentence.

23.  Apart from his timely guilty plea, there are no other mitigating factors.

Starting points

24.  In the light of the above, for Charge 1, I adopt a starting point of 2 years 5 months (29 months).  The Defendant pleaded guilty at the first opportunity and is entitled to a one-third discount.  The sentence is reduced to 19 months (rounded down from 19.333 months).

25.  For Charge 2, I adopt a starting point of 5 years and 8 months (ie 68 months).  After the one-third discount, the sentence is reduced to 45 months (rounded down from 45.333 months).

Totality

26.  The amount of Ketamine in the present case is negligible.  I do not intend to take it into account in the sentence.  Although trafficking in a cocktail of drugs is an aggravating factor, I do not propose to enhance the sentence in view of the negligible amount.

27.  The Court is required to consider totality.  The total amount of cocaine in the present case is 20.51 grammes.  The appropriate starting point is 5 years and 9 months (69 months).  After the one-third discount, the sentence should be reduced to 46 months.  Accordingly, I make the following order.

(1)  For Charge 1, the Defendant is sentenced to 19 months’ imprisonment;

(2)  For Charge 2, the Defendant is sentenced to 45 months’ imprisonment;

(3)  1 month of the sentence of Charge 1 shall be served consecutively to Charge 2, ie a total sentence of 46 months (3 years and 10 months).