HKSAR v. WONG KIN FU

DCCC 834/2022

[2023] HKDC 1777

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 834 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant in this cases faces one charge of trafficking in dangerous drugs to which he has entered a plea of guilty.  The particulars of the offence show the offence occurred at the Garden Inn, Hong Kong, Mong Kok and that the narcotic quantity of the drugs that the defendant has pleaded guilty to trafficking in are 14.71 grammes of cocaine and 2.06 grammes of Methamphetamine hydrochloride.

2.  The defendant has admitted the facts and I have entered a conviction on the charge.

3.  The facts are simple and show that the defendant was intercepted in Mong Kok on 29 May 2022 by a stop and search.  A hotel room card was found from his trousers and a search of the hotel room was conducted during which the drugs were found in various containers and resealable plastic bags.  At the same time as the discovery of the drugs in the hotel room there were also found three mobile telephones, a mini-electronic scale and two packs of empty resealable plastic bags.  The defendant had a total of $2,790 in cash on him at the time of his arrest.

4.  The estimated total street value of cocaine as of April 2022 was about $13,371.39 and the estimated total street value of the Methamphetamine hydrochloride, as of April 2022, was about $1,178.32.

5.  And the defendant makes a general admission he possessed the drugs seized for the purpose of unlawful trafficking in them.

6.  The defendant’s background shows that he is single, now aged 53, a decoration worker when he was arrested, living in the hotel room.  He has family in Hong Kong, particularly his mother who is aged 90 years old.

7.  He has a clear record though I am told he is bailed in respect of certain offences for which no charges have been preferred at this stage.

8.  In his mitigation the defendant does claim that a part portion of the drugs would be for self-consumption.  He said that would be a significant portion.  He says the Ice itself would have been for his own use and the cocaine would have been shared with friends.  There is a report from the Lai Chi Kok Reception Centre dated 2 June 2022 which is about a week after his arrest and incarceration.  The defendant tested positive for both cocaine and amphetamine which is consistent with previous consumption of both cocaine and the Methamphetamine for which he is charged.

9.  For the approach to sentencing is concerned, the general approach being set out in Hong Kong Court of Appeal case in HKSAR v Herry Jane Yusuph [2021] 1 HKLR 290.  There follows a number of steps which the court should take, such as identifying the applicable guideline, identifying the offender’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors known, pass a sentence which is fair, just and balanced in all the circumstances of the offence and the offender.

10.  Dealing with the first task of the court which is to calculate the starting point for each drug calculated which helps in establishing a notional starting point.  In this case there are two types of drug.  Relevant figures based on the existing tariffs would be in respect of the 14.71 grammes of cocaine.  There is a dispute between prosecution and defence on this, but it would appear that the overall figures should be one of 64 months’ imprisonment on a purely mathematical calculation for 14.71 grammes of cocaine.

11.  Dealing with the 2.06 grammes of Methamphetamine hydrochloride, the tariff sentence of up to 10 grammes of this substance would be between 3 to 7 years’ imprisonment.  This leads to a starting point for that particular drug in the region of 3 years and 9 months’ imprisonment.

12.  Here there are what is described as a cocktail of drugs.  The courts have identified two possible approaches to dealing with what are called cocktails of drugs where there are more than one drug seized.  There are two approaches; one is the individual approach and the second one is the combined approach.  A general outlining of the approaches can be found in the case of HKSAR v Yip Wai Yin [2004] 3 HKC 367.

13.  The individual approach would be looking at each component of the cocktail batch and then sentencing by adding up the different sentences relevant to each individual drug.  I note that that usually leads to the highly excessive sentences very seldom taken as the correct approach.

14.  The second approach is the combined approach whereby the court looks at the overall quantity of drugs, rather than the individual portions.  It takes a global view: the court is able to assess realistically and fairly the appropriate sentence.  The methodology of this combined approach has also been considered and that is to find the applicable sentence for the more or most serious drug then adjust the sentence upwards to take into account significant quantities of the less serious drugs.

15.  In the case of HKSAR v Cheung Kwok Leung Lowence, that is now reported case of CACC 539/2002, the Court of Appeal had said that the more or most serious drug, we are not referring to quantities but to the seriousness in terms of the potency of the drug, thus for example where significant quantities of Ice and Ketamine are found in a cocktail, the more serious drug is taken to be Ice, even in terms of quantity, maybe less than Ketamine.  This approach can also lead to an excessive sentence, especially in a case such as this where there are small quantities of what would be described as the more serious drug.

16.  But the combined approach does allow the court to calculate the sentence on what is described as the more or most serious drug and I am taking that to mean the most in terms of quantity.  The approach the court must take must depend on the general circumstances of the case.  In this case I will take as the base drug, the drug cocaine which is by far the most significant quantity of drug.

17.  As I have already said, the approach the court takes must depend on the circumstances of the case and the sentence that is derived at, or the notional starting point, must be checked against what is described as the absurdity test, the conversion test and the ratio test.

18.  In this case I have already said I will adopt the combined approach and take cocaine as the basic drug.  This is the largest quantity of drug by far. The quantity of Methamphetamine is relatively small.  If the two quantities are added together it leads to a total quantity of 16.77 grammes and the starting point derived from quantity would increase to one of in the region of 66 months’ imprisonment, or 5 years 6 months.

19.  This figure of course is subject to an enhancement on the basis that there is a cocktail of drugs involved.  If I enhance that figure to reflect that this is a cocktail of drugs it would lead to a notional starting point of 72 months’ imprisonment with enhancement of 6 months.

20.  When taken against the individual approach, the figure derived from that approach would be 9 years and 1 month which is well beyond my jurisdiction.

21.  I also note the other tests that are involved when compared against this figure of 72 months, which is after enhancement for the effect of it being a cocktail, the absurdity test would lead to a starting point for sentence in the region of 7 years and 5 months.  Conversion to Ice would be 6 years and 2 months; cocaine 5 years and 9 months, and the ratio test would also lead to a figure of 69 months.  I am content at this stage to take the notional starting point of 72 months’ imprisonment.

22.  This is subject to any mitigating factors.  I note that the defendant is of clear record.  I disregard the fact that the offences may have been committed whilst the defendant was on police bail.  Of more significance to the calculation of the starting point in this case, the calculation of the final sentence would be the defendant’s self-consumption of the drug.

23.  There is a basis for this, this is established in the medical records provided by the conventional Correctional Services Department which establishes that the defendant is a user of both drugs so it can be established factually, or considered to be correct factually, that the defendant may well have consumed a significant portion of the drugs himself. When a deduction is made for that figure, that can be in the range of 10% to 25% of the notional starting point.

24.  Authority for that comes from the case HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572 where it is said that a significant proportion of dangerous drug was for self-consumption, this would afford the defendant’s mitigation and there is no reason why the sentencing court could not normally follow the broad range of discount between 10% and 25% from the notional starting point.

25.  I consider the defendant’s factually established base for deduction of former on that basis.  I take a figure of between 10% to 15% or 9 months for deduction on this basis.  This reduces the notional starting point now to 63 months’ imprisonment.

26.  The defendant has indicated a plea of guilty from an early stage.  This entitles him to a further one-third deduction from this figure, giving the final sentence in this case of 42 months’ imprisonment.