HKSAR v. WONG KWAN TAT

DCCC 46/2024

[2025] HKDC 342

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 46 OF 2024

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REASONS FOR SENTENCE

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1.  On a roadblock set up by police in the morning of 25 August 2023, the defendant was searched, and on his waistband, the police found 75 bags of dangerous drugs. Subsequent analysis by confirmed that 50 bags contained cocaine, with the total weight of 6.74 grammes. 25 bags were ketamine, the total weight 10.51 grammes. In addition, the police found two mobile phones in his car.

2.  The defendant admitted to the above facts and was convicted of one count of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  Apart from his admission, the prosecution relied on the fact that there were many bags in small quantities of dangerous drugs, to contend that he was in fact trafficking them.

3.  Sentencing for trafficking in dangerous drugs has been clear.  The Court of Appeal has set down tariffs for trafficking in different kinds of dangerous drugs.  As far as cocaine is concerned, the present quantity of 6.74 grammes of cocaine falls into the up to 10 grammes bracket, warranting a starting point of between 2 to 5 years.  The present quantity therefore twelve 4 years’ imprisonment.  See Lau Tak Ming [1990] 2 HKLR 370.

4.  In respect of ketamine, the present quantity involves 10.51 grammes of the dangerous drugs and falls into the bracket of 10 to 50 grammes, warranting a starting point between 4 to 6 years’ imprisonment.  That warrants a starting point of 4 years.

5.  The above authorities and calculations have not been disputed by the prosecution.  I am satisfied that they are still good law and I see no reasons to depart from them.

6.  There are two kinds of dangerous drugs, if they are on their own, of course each warrants 4 years’ imprisonment and technically, they should be sentenced separately.  However, after taking into account of the Totality Principle, 8 years of prison not only, exceed my jurisdiction, and would be too harsh.

7.  By assuming all the drugs were cocaine, that is trafficking in 17.25 grammes of cocaine, the sentence should be around 5 years and 6 months.  If converting all the drugs into cocaine and taking in the calculation of the difference in trafficking in ketamine and cocaine, it would come up with 13.54 grammes of cocaine and warrant a sentence of 5 years and 3 months.

8.  By adopting the ratio test, in this case the ketamine took up about 60 per cent of the dangerous drugs, the ketamine would warrant 2.61 years, whereas the cocaine would take up 40 per cent and the sentence would be 2.21 years, making a total of 4.82 years.

9.  Sentencing is not purely a mathematical exercise.  The above tests offer calculations and results that could be a reference to my sentencing, and in all, I would think that about 5 years is an appropriate sentence.

The role of the defendant

10.  It has been pointed out that the defendant’s role in the trafficking is a relevant factor in considering the final sentence order.  It has been submitted that the defendant’s role is purely a messenger because he did not patriciate in the actual sale.  Even assuming that he was, the present case involves 75 bags of dangerous drugs.  It was early in the morning, and he was driving his car in Mong Kok.  He had two telephones with him.

11.  After viewing the above matter in most favourable farmable light, I would say that as a messenger, he was an rather important one as there was no way that he did not know that he was bringing those drugs to the others.  Having considered the matter as a whole, 5 years is a proper sentence.

Mitigations

12.  The defendant is 39 years old, divorced.  He has a daughter for whom he was still responsible for contribution for her maintenance.  He lived with his parents and was responsible for their care.

13.  The defendant was working in construction and as a decoration worker, making an income of $20,000 per month.  It was also submitted that at a time, the defendant was under great stress because his ex-wife was asking for money for the support of his daughter.  He was troubled both emotionally and financially, and had to agree to traffic drugs for other people.  It was also stated on his behalf that it was a very poor judgment on his behalf and that his payment was some free drugs and the purchase at a discounted price.

14.  The above are not exactly valid mitigation.  I am sure the defendant was regretful after he was arrested.  Although it is stated that he expected to have some free drugs, it was not clear whether the drugs seized were part of which are for his consumption.  The defence counsel did not seem to emphasis this fact nor did he try to convince this court there is a reasonable probability that this was so.  Therefore, such a point, again, does not amount to any valid mitigation.

15.  The defendant had a total of eight previous record with 11 convictions. The last one was in 2016 for which he was sentenced to 4 weeks for a charge of assaulting occasioning actual bodily harm.  Although this court would not consider his previous convictions relevant in sentencing, with his record, he could not really expect this court to exercise discretion in his favour to reduce his sentence.

16.  The only valid mitigation is that he pleaded guilty.  Therefore, in line with the directions of the Court of Appeal, I would reduce the sentence from 60 months to 40 months.