HKSAR v. WONG SIN YUK

DCCC 591/2022

[2023] HKDC 557

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 591 OF 2022

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REASONS FOR SENTENCE

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1.  Mr Wong pleaded guilty before me to one charge of Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. Particulars are that he, on 13 February 2022, outside Central Ferry Pier No 5, Central, Hong Kong, unlawfully trafficked in dangerous drugs, namely 6.25 grammes of a solid containing 5.79 grammes of cocaine and 30.7 grammes of a solid containing 24.9 grammes of ketamine.

Facts admitted by Mr Wong

2.  On 13 February 2022, at about 1725 hours, at Central Ferry Pier No 5, Central, Mr Wong was walking down a staircase at the right side of the front gate of the pier.  As he was doing so, he spotted some uniformed patrolling police officers nearby.  He then bowed his head and walked hastily away.

3.  Feeling something suspicious, PC 17653 (PW1)  intercepted Mr Wong for a body search.

4.  During the search, a 10cm x 7cm transparent resealable plastic bag fell off from the right trousers’ leg of Mr Wong’s trousers.  That bag was found to contain:-

(a)  5 small transparent resealable plastic bags containing ketamine (E1); and

(b)  4 small transparent resealable plastic bags containing ketamine (E2).

5.  PW1 arrested Mr Wong for the offence of Trafficking in dangerous drugs.

6.  Then, inside the left inner pocket of the jacket worn by Mr Wong was found a second 10cm x 7cm transparent resealable plastic bag which itself contained 3 small transparent resealable plastic bags containing ketamine (E3).

7.  Then, inside Mr Wong’s underpants, PW1 found 3 other 10cm x 7cm transparent resealable plastic bags A, B & C.  They were respectively found to contain:

(A)  3 small transparent resealable plastic bags containing ketamine (E4);

(B)  5 small transparent resealable plastic bags containing ketamine (E5)  and 4 small transparent resealable plastic bags containing ketamine (E6); and

(C)  10 small transparent resealable plastic bags containing a total of 6.25 grammes of a solid containing 5.79 grammes of cocaine (E7).

8.  Mr Wong was brought back to the police station where he was body-searched.  Cash of $18,665.30 and one iPhone were found on him.

9.  On the next day ie 14 February 2022, in the presence of his elder sister and a lawyer, Mr Wong under caution said he was a student of VTC.

10.  E1, E3 and E5 were certified to be a total of 15.9 grammes of a solid containing 12.9 grammes of ketamine.

11.  E2, E4 and E6 were certified to be a total of 14.8 grammes of a solid containing 12.0 grammes of ketamine.

12.  The total estimated market value of E1 to E7 was about $20,000.

13.  Mr Wong admits that he was in possession of the drugs for the purpose of unlawful trafficking.

Criminal record

14.  Mr Wong has a clear record.

Antecedents

15.  Mr Wong is aged 17 (16 at the time of the offence).  He was in year one of a Diploma program.  He is single and lived with his parents before arrest.

Mitigation

16.  Messrs Franco Kuan and Chris Ip both of counsel mitigated on behalf of Mr Wong.  The following is a summary of the mitigation submissions.

17.  Defence accepts that due to the quantity of drugs involved, a Training Centre Order may not be appropriate.

18.  Mr Wong admits that all drugs here are for the purpose of trafficking.

19.  Mr Wong completed F3 from a local secondary school.  At the time of arrest, he was studying for the Diploma of Vocational Education in Image Design at HKVTC.

20.  Mr Wong has a clear record.  Before being placed in remanded custody, Mr Wong lived with his parents.  Mr Wong’s father works as a delivery worker while his mother is a housewife.  Mr Wong has a half-elder-sister mothered by their father’s ex-wife.  All three family members are in court to give Mr Wong their support.

21.  Mr Wong pleaded guilty at the very first opportunity demonstrating his remorse.  His conviction at this early stage of his life is a huge lesson for him.  The chance of re-offending is low.

22.  On behalf of Mr Wong, the defence submitted 6 mitigation letters and a letter of thanks from the police for reporting an unrelated case in September of 2021 (all letters in Chinese).  The mitigation letters were written respectively by Mr Wong himself, his father, mother, half-elder-sister, a social worker and Mr Wong’s former school principal.  The contents are generally that Mr Wong committed the offence due to greed; he is now deeply remorseful and is willing to accept punishment; he promises to turn over a new leaf and to refrain from wrongs.  Mr Wong and his family members asked for a lenient sentence from the court so he may reunion with the family early and start afresh.

23.  On starting points, defence worked out the various figures using the tariffs for trafficking in cocaine (from The Queen v Lau Tak Ming & Ors [1990] 2 HKLR 370)  and for trafficking in ketamine (from Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1)  as follows:-

(a)  Individual approach: 101.78 months (44.84 for cocaine plus 56.94 for ketamine);

(b)  Combined approach:-

(i)  Absurdity test (cocaine as the most potent drug): 78.62 months;

(ii)  Conversion test: 64.45 months (cocaine)  and 62.15 months (ketamine); and

(iii)  Ratio test: 63.85 months.

24.  Defence submits that the sentence derived from the Conversion test and the Ratio test appears to be more appropriate.

Sentence

25.  In Lau Tak Ming (supra)  itself, the Court of Appeal warned against extending sympathy to youthful offenders.  At 386G, the court said,

“Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of …, the young and the aged in the carrying out of their nefarious trade.”

26.  Hence, no credit will be given to Mr Wong despite his youth.  An immediate term of imprisonment remains the only viable sentence in his case.

27.  Given the presence of a cocktail of drugs, I will need to consider the approach espoused in HKSAR v Chan Yuk Leong, CACC 318/2013.  There, the Court of Appeal re-emphasized the two aggravating factors of which a sentencing court should take note in this kind of case, namely (1)  the ability of the trafficker to cater to a wider market; and (2)  the effect on users of combinations of dangerous drugs.  As regards (2), I note that in this case the two types of drugs were placed separately though in close proximity to one another.

28.  In relation to the three cross-checking tests, the results of my own calculation are more or less the same as those worked out by the defence.

29.  All things considered, I agree that the combined approach will give a fairer assessment of the sentence.  Bearing the cross-checking test results in mind, I adopt an initial starting point of 64 months.  For Mr Wong’s clear record and as an act of mercy, I will knock off one month to arrive at a final starting point of 63 months.

30.  Mr Wong pleaded guilty in good time earning for himself the full 1/3 discount.  There are no other mitigating circumstances justifying a further reduction in sentence.

31.  The sentence is therefore 42 months’ imprisonment.