HKSAR v. WONG KAM LUNG

DCCC 1112/2023

[2025] HKDC 138

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1112 OF 2023

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to 2 charges of trafficking in dangerous drug:-

Charge 1: 2.98 g of ketamine (found in Vehicle 1);

Charge 2: 94.4 g of ketamine (found in Vehicle 2).

2.  The 2 vehicles were parked next to each other in a carpark of Yee Fung Garden, Yuen Long.

3.  The Defendant was seen got off from V1 and approached V2, as he was acting furtively, he was stopped for enquiry.

4.  On his person, he has keys for both vehicles and he was the registered owners of both vehicles.

5.  In V1, a bag containing cash of HK$42,730 , TWD 400 and RMB 50.  In V2, 2 mobile phones were also found.

6.  Under caution, he said that he intended to sell the drugs in Charge 1 and 2.

7.  The estimate street value of all the drugs was about HK$63,640.

Criminal record

8.  The Defendant has 4 previous court appearances for 7 convictions from 2008 to 2017:-

(a)  In 2008 - Possession of dangerous drugs.

(b)  In 2017 - Trafficking in dangerous drugs - 7 years and 4 months’ imprisonment. Released in July 2021.

(c)  Others criminal records were driving offences and assaulting police officer.

Background

9.  The Defendant is now 36 years old.  Married with a 2 years old son.  His wife stays at home to look after their son.  The Defendant’s mother-in-law is suffering from terminal cancer.  He contributed HK$13,000 for her medical treatment.

10.  Before the arrest, the Defendant earned HK$40,000 to HK$50,000 per month as a decoration worker and salesman.

11.  He committed the present offence as he was in need of money to support his family.

12.  Today, there are 3 letters before me, they are from the Defendant, his wife and his mother in law; they all said that the Defendant committed the present offence due to financial burden.  The Defendant is particularly regretful, as he knows that he will miss his time with his son in the coming period of remand.

Sentence

13.  The maximum sentence on conviction upon indictment for the offence is that of life imprisonment and a fine of HK$5 million.

14.  As said in the case of HKSAR v Wan Lau Mei[1]that:-

“where different quantities of dangerous drugs were found in the accused’s possession on the same day but at different locations, the judge should regard the two offences as representing one occasion of possession of the total amount of drugs and impose sentences on both offences for that total, making the sentences concurrent with one another … “ (paras 29-30)

15.  In the present case, given the drugs were found in close temporal and spatial proximity, I will regard the two offences as representing one occasion of possession of the total amount of drugs.  I will adopt a global nominal starting point based on the combined quantity of ketamine, and then arrange for the individual sentences to be served so that the combined sentence can be achieved.

16.  As set out in the case of HKSAR v Henry Jane Yusuph[2], there is a 6-step approach in sentencing.

Step 1: The relevant guidelines

17.  The first step requires the Court to assess the gravity of the offence by looking at the type and quantity of the drug involved.  In the present case, there is one type of dangerous drug involved.  That is 2 charges of ketamine for 2.98 g and 94.4 g respectively, the total quantity is 97.38 g.

18.  By applying the sentencing tariffs for ketamine in Secretary for Justice v Hii Siew Cheng[3], given the quantity of the amount of drugs involved:-

(a)  Charge 1 falls into the sentencing bracket of 2 to 4 years’ imprisonment.

(b)  Charge 2 falls into the sentencing bracket of 6 to 9 years’ imprisonment.

Step 2: The Defendant’s role and culpability

19.  The Defendant said under caution that the drug in both charges were intended for selling to others. The drug in Charge 2 were packed into 250 small packets and evenly stored in 5 different plastic bags.  Obviously, V2 was used as a storage for all the drug in Charge 2. While V1 was used to drive to different destinations to sell the drug.  As such, the role of the Defendant is a storekeeper and also a direct trafficker.  He will be sentenced on the basis as a storekeeper/direct trafficker. In such circumstances, the arithmetical approach to the guideline tariff will be adopted.

Step 3: The relevant band within the guideline

20.  Given the role of the Defendant in the present case, I accept that the relevant band in Hii Siew Cheng is applicable:-

(a)  Charge 1 - 2.98 g of ketamine attract a sentence of 2 years and 5 months;

(b)  Charge 2 - 94.4 g of ketamine attract a sentence of 6 years and 6 months.

Step 4: Aggravating factor

21.  (a)  The Defendant has previous record of trafficking in dangerous drugs (2017); and

(b)  He committed the similar offence just under 2 years after his release from the previous ( 2017 )  trafficking case.

22.  The Defence accepted that there are aggravating factors in the present case. As such, there is basis for enhancement of sentence.  I consider that a 3 months’ enhancement is appropriate.

Step 5 – Mitigating factor

23.  The Defendant is 36 years old and committed the present offence because of financial pressure especially his mother in law has suffered from terminal cancer.  As said in the case of Henry Jane Yusuph, personal circumstances will count for little, unless they are exceptional.  Financial pressure cannot be regarded as a mitigating factor in a crime as serious as the present one.

24.  I find the only meaningful mitigation is the timely plea from the Defendant, as such he is entitle to a ¹/₃ discount.

(a)  Charge 1 – starting point is 2 years and 5 months (29 months), enhance by 3 months , it arrives at 32 months , given ¹/₃ discount, it comes down to 21.4 months. ( (29 + 3)  x 1/3 )

(b)  Charge 2 – starting point is 6 years and 6 months – enhance by 3 months, it arrives at 6 years and 9 months, given ¹/₃ discount, it reduces to 4 years and 6 months.

Step 6 – Totality

25.  As previously said, the cache of the drug from V1 are the same source of the drug found in V2.  The possession of the drug in the 2 charges should be treated as one occasion of possession of the total amount of drug.

26.  Therefore, the final stage of the sentencing process is to stand back and look at the overall sentence passed to make sure that it is fair and just.  Taking into account of the circumstances of the offence and the submission on behalf of the Defendant, I am of the view that a current sentence for both charges is appropriate and is not out of proportion to the Defendant’s overall criminality.

Sentence

27.  The final sentence I impose on the Defendant is one of 4 years and 6 months’ imprisonment.