HKSAR v. SRISANGA HON WING

HCCC 91/2022

[2023] HKCFI 70

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 91 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two counts of trafficking in a cocktail of dangerous drugs, contrary to s4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 before the Eastern Magistrates’ Courts on 20 June 2022.

2.  The defendant was seen in the vicinity of the rear staircase on the 9/F of Block B of Chung On Building, No. 305 Sha Tsui Road, Tsuen Wan in the early evening of 13 November 2020, at which time he was seen to enter Room B4.  When he exited at 2343 hours, he was stopped and searched and found to be in possession of the drugs which are the subject of Count One.  A search of Room B4 recovered the drugs which are the subject of Count Two.

3.  Upon arrest and caution he denied knowledge of the ownership of the drugs and said he had been ‘urged’ to take the drugs for distribution as he was in debt to the person who instructed him.  The street value of the drugs recovered was in the region of $838,764 dependent upon the nature of the drugs recovered.

4.  The defendant is now 18 years of age and single with an education up to Form 1.  He was just 17 at the time of this offending. He has been raised by his mother in Hong Kong as his father left when he was 7 years old and lives in Thailand.  I have read the letters provided to the Court which suggest that the defendant had a difficult childhood and began to mix with the wrong crowd from an early age but has responded well to social care intervention since his arrest.

5.  Under Count One, the defendant had in his possession the following drugs:

230.5g	Methamphetamine hydrochloride (Ice)
45.20g	Ketamine
2.07g	Cocaine
0.87g	3,4-methylenedioxymethamphetamine (MDMA)

6.  Under Count Two, the defendant had in his possession the following drugs:

316.93g	Methamphetamine hydrochloride (Ice)
471.88g	Ketamine
12.62g	Cocaine
2.3g	3,4-methylenedioxymethamphetamine (MDMA)
5.18g	3,4-methylenedioxymethamphetamine (MDMA)

7.  I intend to treat all of the different types of methamphetamine together under each count.  That would mean that there are three types of drugs to consider under Count One, i.e. 231.37g of ice, 45.20g of ketamine and 2.07g of cocaine, and three types of drugs under Count Two, i.e. 324.41g of ice, 471.88g of ketamine and 12.62g of cocaine.

8.  Before the Court can find the appropriate starting point for sentence where there is a cocktail of drugs, it is helpful to first consider the sentence if the drugs were dealt with individually by count.

9.  The relevant sentencing guidelines for ice, ketamine and cocaine are HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 and R v Lau Tak Ming [1990] 2 HKLR 370 respectively.  Following those guidelines, the following approximate starting points after trial would be:

Under Count One

231.37g of ice	13 years 9 months
45.20g of ketamine	5 years 9 months
2.07g of cocaine	2 years
Total	21 years 6 months

Under Count Two

324.41g of ice	13 years 9 months
471.88g of ketamine	10 years 9 months
12.62g of cocaine	5 years 3 months
Total	29 years 9 months

10.  Those figures are clearly far in excess of the culpability and blameworthiness of this defendant.

11.  If, on the other hand, the Court were to add together the three types of drugs and treat them as if they were all within one count, they would amount to:

555.78g	Ice	19 years 3 months
517.08g	Ketamine	11 years 2 months
14.69g	Cocaine	5 years 4 months
Total		35 years 9 months

12.  In order to consider the ratio and conversion tests, the Court is required to consider the overall quantity of narcotic recovered.  The total amount of dangerous drugs recovered was 1087.55g.  Ice has a greater narcotic content than cocaine or ketamine.  The ice recovered represents approximately 51% of the total.  The ketamine represents approximately 47% and the cocaine just over 1%.

13.  Under the ratio test, if all of the drugs were ice then it would attract a starting point after trial of 22 years 5 months. If all the drugs recovered were ketamine, then it would attract a sentence of 14 years 3 months and if all the drugs recovered were cocaine, it would attract the same sentence as the ice under HKSAR v Abdallah [2009] 2 HKLRD 437 of 22 years 5 months.

14.  The actual ice recovered represents 51% of the total narcotics.  51% of a sentence of 22 years 5 months is 11 years 5 months. The total amount of ketamine recovered represents 47% of the total.  47% of 14 years 3 months is 6 years 8 months.  The cocaine represents just over 1% of the total narcotics recovered and as such would add just 2 months to the sentence. Those figures added together would make a total sentence on both counts of 18 years 3 months.

15.  On the other hand, under the conversion test, the Court must ask itself what amount of ice would attract a sentence of either 11 years 3 months or 5 years 4 months.  Then, what amount of ketamine would attract a sentence of 19 years 3 months or 5 years 4 months, and finally, what amount of cocaine would attract a sentence of 19 years 3 months or 11 years 3 months.  This works out as:

Ice	11 years 3 months = 84.37g 5 years 4 months = 5.80g
Ketamine	19 years 3 months = 2625g 5 years 4 months = 36.66g
Cocaine	19 years 3 months = 570g 11 years 3 months = 171g

Adding these up:

Ice	555.78+84.37+5.80 = 645.95	20 years 3 months
Ketamine	517.08+2625+36.66 = 3178.74	20 years 3 months
Cocaine	14.69+570+171 = 755.69	20 years 9 months

16.  On the ratio test the overall sentence is 18 years 3 months and on the conversion test it is 20 years 3 months.  A starting point of 19 years 3 months would therefore be appropriate overall.  With a one third discount for plea that would be 12 years 10 months.  That will be dealt with in the following way.

17.  On Count One the defendant will go to prison for 9 years 4 months.  On Count Two the defendant will go to prison for 10 years 10 months, 3 years 6 months of which will run consecutively to Count One making a total of 12 years 10 months.