HKSAR v. WU SIU CHUNG

DCCC 812/2021

[2022] HKDC 1129

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 812 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 charges:-

Charge 1: Possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134.

Charge 2: Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

FACTS

Charge 1

2.  At around 10:18 pm on 21 May 2021, defendant was found acting suspiciously at a staircase in Tsz Ching Estate, Wong Tai Sin.  Police officers then revealed identity to the defendant.  However, the defendant immediately ran away.  Police officers gave chase.

3.  During the chase, the defendant took out a transparent resealable bag containing 0.93 gramme of crystalline solid containing 0.91 gramme of methamphetamine hydrochloride from his bag and threw it away.

Charge 2

4.  As the defendant was subdued by the police officers, the defendant dropped a car key onto the ground.  It was the key to a private car which the defendant hired for his own use.  The vehicle was found inside the carpark of Tsz Ching Estate.

5.  Upon search of the vehicle in the presence of the defendant, the following items were found and seized:-

(i)  Inside the storage compartment under the driver’s seat: A plastic bag containing 40 plastic bags containing a total of 6.56 grammes of a solid containing 5.88 grammes of cocaine;

(ii)  On the rear seat: a rucksack containing two electronic scales, a total of 538 empty resealable transparent plastic bags and the following items:-

(a)  1 plastic bag containing 0.03 gramme of a crystalline solid containing methamphetamine hydrochloride,

(b)  1 plastic bag containing 0.66 gramme of a solid containing 0.55 gramme of ketamine;

(c)  1 plastic bag containing 0.61 gramme of a crystalline solid containing 0.59 gramme of methamphetamine hydrochloride;

(d)  1 plastic bag containing 1.59 grammes of a crystalline solid containing 1.56 grammes of methamphetamine hydrochloride;

(e)  1 plastic bag containing 0.49 gramme of a crystalline solid containing 0.48 gramme of methamphetamine hydrochloride; and

(f)  1 plastic bag containing 0.88 gramme of a crystalline solid containing 0.87 gramme of methamphetamine hydrochloride.

(iii)  On the floor of the rear seats: one medical appointment sheet and receipt with the defendant’s name thereon.

6.  At the material time, the defendant was in possession of the seized dangerous drugs for the purpose of unlawful trafficking.

7.  In summary, the total amount of the dangerous drugs of charge 2 is as follows:-

Dangerous drugs	Gross weight	Narcotic content
(a)  Methamphetamine hydrochloride (“ICE”)	3.60 g	3.50 g
(b)  Cocaine	6.56 g	5.88 g
(c)  Ketamine	0.66 g	0.55 g
Total		9.93 g

8.  At the time of the arrest, the defendant had two mobile phones and cash of HK$13,184.70 on him.

9.  The estimated value of the dangerous drugs of both charges is HK$10,865.

CRIMINAL RECORD

10.  The defendant has 12 previous convictions, 6 of them are drug-related and 1 involves trafficking.

MITIGATION

11.  The defendant is 34 years old.  He is educated up to form one.  He and his wife are separated.  They have a daughter who is now 7 years old living with the defendant prior to the arrest.  The defendant is a logistic driver earning around HK$20,000 a month.

12.  In mitigation, Mr Woon submitted that the defendant had to financially support his parents and his child.  He did not earn sufficient money to support himself.  The defendant was a drug addict. The defendant took the risk of acting as a courier on the day of his arrest for a financial reward of HK$500 for each successful delivery.  Mitigation letters written by the defendant, parents of the defendant, employer of the defendant and the Social worker of defendant’s Drug Counseling Centre were submitted.

SENTENCE

Guidelines

13.  In respect of the trafficking offence (Charge 2), the tariff guideline for trafficking in ICE is set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.   For up to 10 grammes of ICE, the sentence ranges from 3 to 7 years’ imprisonment.  On an arithmetic calculation, the starting point according to the tariff for 3.5 g of narcotic content is 52 months’ imprisonment. 

14.  The tariff guideline for trafficking in cocaine is set out in the AG v Pedro Nel Rojas [1994] 2 HKCLR 69 and R v Lau Tak Ming & Others [1990] 2 HKLR 370.  For up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years’ imprisonment.  On an arithmetic calculation, the starting point according to the tariff for 5.88 g of narcotic content is 45 months’ imprisonment. 

15.  The tariff guideline for trafficking in Ketamine is set out in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  For up to 1 gramme of Ketamine, the sentence is within the discretion of the court and for over 1 g to 10 g, the sentence ranges from 2 to 4 years.  On an arithmetic calculation, the starting point according to the tariff for 0.55 g of narcotic content is 13 months’ imprisonment. 

16.  In determining the overall starting point, I have reminded myself of the sentencing principles in HKSAR v Chan Yuk Leong CACC 318/2013 where cocktail drugs are involved.  The court has to apply three tests to cross check in order to ensure the overall sentence to be within range:-

(i)  Under the absurdity test, assuming the whole quantity of drugs seized (9.93 g)  contained only the most serious drug ie ICE, the starting point would have been about 83 months’ imprisonment.

(ii)  Under the conversion test, the sentence for trafficking in 5.88 g of cocaine would be similar to the sentence for trafficking about 1.9 g of ICE. The conversion test however excludes a conversion of the ketamine to ICE because the corresponding term of imprisonment is less than the minimum length of imprisonment under the guideline for ICE. If one were to add the converted quantity (1.9 g of ICE)  to the 3.5 g of ICE seized, one would arrive at a total of about 5.4 g of ICE. For 5.4 g of ICE, the starting point would be 62 months.

(iii)  Under the ratio test, 3.5 g of ICE over 9.93 g of total quantity of drugs seized is 35.25%, 5.88 g of Cocaine of total quantity of drugs seized is 59.21% and 0.55 g of total quantity of drug seized is 5.54%. By applying the test, the total sentence is 67 months.

Dangerous Drugs	Sentencing assuming 9.93 g of single drug	Ratio	Sentence
ICE	6.972 years	35.25%	2.45 years
Cocaine	4.979 years	59.21%	2.95 years
Ketamine	3.98 years	5.54%	0.22 years
Total:			5.62 years (67 months)

Combined approach

17.  In the present case, I am of the view that a “combined approach” is to be preferred.  The combined approach involves the calculation of the applicable sentence for the more or most serious drug, and then adjusting the sentence upwards to take into account significant quantities of other.  In carrying out this task the sentencing court should take a common sense approach in determining which drug is to be the base drug in order to calculate the starting point[1].

18.  I have also considered and applied the methodology under the combined approach as laid out in HKSAR v Islam S M Majharul [2020] 3 HKLRD 146.

19.  In terms of potency, it is agreed by parties that ICE is the most potent drug in this case.  As such, 3.5 g of ICE should form the basis of the starting point.  Hence, I adopt a starting point of 52 months’ imprisonment.  Taking all matters into account to calculate a reasonable and realistic increase to the starting point, I adjust it upward by 8 months for the quantity of 5.88 g cocaine and 0.55 g ketamine, arriving at 60 months’ imprisonment. 

20.  I have considered the aggravating factors that the trafficking involved three serious dangerous drugs (ICE, Cocaine and Ketamine)  in this case (see HKSAR v Chan Yuk Leong).  I enhance the starting point by 6 months.

21.  In addition, the defendant has 6 previous convictions relating to drug offences, three[2] of them resulted in terms of imprisonment, not to mention that one of them was trafficking in dangerous drug.  I further enhance the starting point by 3 months.

22.  Therefore, for Charge 2, the starting point is 69 months’ imprisonment.  Giving the defendant full credit for his plea of guilty, after one-third reduction, the sentence is one of 46 months’ imprisonment.

23.  As to Charge 1, in view of the quantity of 0.91 g of ICE, I adopt a starting point of 9 months’ imprisonment, reduced to 6 months after discount.

TOTALITY

24.  Having considered the overall culpability, I order the sentence to run concurrent with each other.

25.  The defendant is sentenced as follows:-

Charge 1 – 6 months’ imprisonment.

Charge 2 – 46 months’ imprisonment, concurrent to charge 1.