HKSAR v. KUNG CHUN SING (also known as KUNG CHUN KIT)

DCCC 1119/2022

[2024] HKDC 45

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1119 OF 2022

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REASONS FOR SENTENCE

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1.  Mr Kung 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 3 August 2022, on a private car bearing registration mark YB4913, near Lamppost No EB2520, San Hong Street, Sheung Shui, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 9.54 grammes of a solid containing 7.61 grammes of cocaine and 9.19 grammes of a solid containing 7.77 grammes of ketamine.

Facts admitted by Mr Kung

2.  On 3 August 2022, at about 0055 hours, in San Hong Street, Sheung Shui, Mr Kung was acting furtively.  Just as he was opening the driver’s door of a private car YB4913 parked on the side of the road, two patrolling constables PW1 and PW2 intercepted him for investigation.

3.  The car was searched in Mr Kung’s presence.  A brown paper bag and a black plastic bag were found in the storage compartment on the driver’s door. The brown paper bag contained two transparent resealable plastic bags, which respectively contained 36 and 19 bags of suspected cocaine (“Exhibits 1 and 2”)  and 14 bags of suspected dangerous drug (“Exhibit 3”), while the black plastic bag contained one transparent resealable plastic bag containing suspected cocaine (“Exhibit 4”).

4.  PW1 arrested Mr Kung for Trafficking in a dangerous drug.  Under caution, Mr Kung stated that the “coke” and “pork” were for his own consumption.

5.  CCTV at the scene captured Mr Kung alighting from the driver’s seat of the car and walking away and then returning about 6 minutes later when he was intercepted by the police.

6.  Mr Kung was the registered owner of the car.

7.  At the time of arrest, Mr Kung had with him $19,300 and one mobile phone.  Nothing suspicious was found from his home during the subsequent house search.

8.  The exhibits were sent to the Government Laboratory for examination. They were found to be:-

(a)  Exhibit 1 – 36 plastic bags containing a total of 6.17 grammes of a solid containing 4.95 grammes of cocaine;

(b)  Exhibit 2 – 19 plastic bags containing a total of 3.20 grammes of a solid containing 2.53 grammes of cocaine;

(c)  Exhibit 3 – 14 plastic bags containing a total of 9.19 grammes of a solid containing 7.77 grammes of ketamine; and

(d)  Exhibit 4 – one plastic bag containing one plastic bag containing 0.17 gramme of a solid containing 0.13 gramme of cocaine.

9.  During a cautioned VRI, Mr Kung stated he was a warehouse worker earning around $15,000 to $17,000 a month.

10.  The estimated value of the cocaine found was around $8,233 (for cocaine powder)  or $15,407 (for crack cocaine), while that of the ketamine found was around $5,643.

11.  Mr Kung now admits he possessed the dangerous drugs found for the purpose of trafficking.

Criminal record

12.  Mr Kung has two previous convictions none similar.

Antecedents

13.  Mr Kung is aged 23 (21 at the time of the offence), educated to F5 level.  He was a warehouse worker at the time of arrest.  Mr Kung is married and used to live in public housing in Sheung Shui.

Mitigation

14.  Mr Harold Lai of counsel mitigated on behalf of Mr Kung.  The following is a summary of the mitigation submissions.

15.  Mr Kung is married and a father to a one-and-a-half year old daughter. He used to live with his parents, wife, daughter, and younger brother.  His father (56)  is a retiree while his mother (54)  is a saleslady.  His brother is 18 years old, unemployed.  Wife takes care of the daughter at home.  At the time of the offence, Mr Kung was a warehouse worker and earned about $15,000 a month.

16.  This is the first time Mr Kung committed a drug related offence.

17.  Since arrest, Mr Kung has been remanded in gaol custody and has had the chance to reflect upon his own blunders.  He has vowed to stay away from all illegal behavior.  He plans to continue work as a warehouse worker upon release.

18.  Shortly before the present offence, Mr Kung’s baby girl was born.  This led to an increase in family expenses.  Mr Kung trafficked the drug in question because of financial needs.  Thankfully, his parents-in-law have provided assistance ever since, and given his plan to obtain employment after serving his term, the chances of re-offending are on the low side.

19.  When reminded by the court that the mitigation letters stated that the financial needs arose from an urge to repay a debt owed by Mr Kung’s father, Mr Lai submitted that according to his instructions, it was a bit of both with the father’s debt predating the birth of the daughter; and the daughter’s birth was the last straw.

20.  The Court of Appeal has laid down a six-step approach in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 to arrive at the appropriate sentence for trafficking cases.

21.  For tariff sentences, Mr Lai referred to HKSAR v Abdallah [2009] 2 HKLRD 437 for cocaine to arrive at 2 to 5 years’ imprisonment for 7.61 grammes of cocaine; and to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 for ketamine to arrive at 2 to 4 years for 7.77 gramnmes of ketamine.

22.  Having regard to the fact that Mr Kung was arrested late at night with substantial amount of cash and a sizeable amount of plastic bags containing drugs (the latter found in his car), Mr Lai accepts that there was sufficient basis to found that Mr Kung was an actual trafficker as described in Herry Jane Yusuph in para 61.  However, Mr Lai submitted that there was no evidence to suggest that Mr Kung engaged in other parts of the drug trade eg organizing, packing or otherwise.  There was no packing apparatus (for instance, scale or resealable plastic bags)  found in his residence.  Therefore, so Mr Lai submits, Mr Kung’s role, while being an actual trafficker, fell short of the examples quoted in Herry Jane Yusuph.

23.  The present case concerns two different types of drug.  The Court of Appeal had in HKSAR v Chan Yuk Leong, CACC 318/2013, applied three tests to ascertain the appropriate starting point, namely the absurdity test, the conversion test, and the ratio test.

24.  The absurdity test.  Assuming the entire quantity seized is the most potent drug, namely, 15.38 grammes of cocaine, the starting point would have been about 5 years and 4 months.

25.  The conversion test.  Covert 7.77 grammes of ketamine into cocaine: according to Hii Siew Cheng, that amount of ketamine carries with it a starting point of around 3 years and 6 months which is the starting point equivalent to about 5.25 grammes of cocaine; combine the converted amount with the seized amount of cocaine results in a total weight of cocaine of 12.86 grammes which will attract a starting point of around 5 years and 2 months.

26.  When asked by the court for the corresponding figure when everything is converted into ketamine, Mr Lai did the calculation in court and gave a figure of 55 or 56 months as the starting point.

27.  The ratio test.  Out of the total of 15.38 grammes of drugs here, around 49.5% was cocaine, and around 50.5% was ketamine.  As such, one will arrive at (i)  around 2.64 years (49.5% of 5 years and 4 months which is the starting point for trafficking in 15.38 grammes of cocaine)  for the cocaine ratio; and (ii)  around 2.15 years (50.5% of 4 years and 3 months which is the starting point for trafficking in 15.38 grammes of ketamine)  for the ketamine ratio. The total would be around 4.79 years ie around 4 years and 9.5 months.

28.  Mr Lai submits that if one is to apply the “combined approach” of sentencing, an upward adjustment can be made to the 4 years and 3 months’ starting point for cocaine to reflect the presence of ketamine as well, with regard to the results of the three cross-checking tests.

29.  Despite the fact that there were two different types of drug enabling Mr Kung to reach out to a wider market, Mr Lai submits that those two types of drug were not “ready-mix” as such.  Therefore, Mr Lai submits, only a slight adjustment upwards is called for under this head.

30.  Mr Lai reminds the court that Mr Kung pleaded guilty showing his remorse and earning for himself the full 1/3 discount.

31.  Mr Lai urges the court to award a sentence which is fair, just and balanced in the circumstances and suggests a final starting point of 5 years’ imprisonment.  Mr Lai invited the court to treat Mr Kung with leniency and mercy.

32.  When questioned by the court, Mr Lai said that Mr Kung is not pursuing self-consumption as a mitigating factor.

33.  Mr Lai submitted on behalf of Mr Kung 3 mitigation letters in Chinese (with English translation)  written respectively by Mr Kung’s elder friend, his common law wife, and his mother.  The contents generally are that Mr Kung committed the present offence because of an urge to repay his father’s debt; that Mr Kung is a responsible husband and father.  All writers asked for leniency on Mr Kung’s behalf so that he may reunite with his young family at the earliest time.

34.  Mr Lai also submitted on Mr Kung’s behalf a letter in Chinese (with English translation)  issued by the Department of Health confirming Mr Kung’s registration on the Centralized Organ Donation Register.

Sentence

35.  The figures of the three cross-checking tests worked out by Mr Lai more or less coincide with those arrived at by myself independently.

36.  I shall sentence Mr Kung on the basis that he is an actual trafficker who should attract a more severe sentence than someone who is merely a courier of drugs.  I bear in mind that the presence of more than one type of serious drug with all its implications is itself an aggravating factor.

37.  Taking into account the presence of a large number of plastic bags containing drugs and the use of a vehicle in the trafficking activities (I was told the vehicle was a second-hand Mercedes Benz saloon purchased for no more than $80,000), I adopt an overall starting point of 5 years and 1 month in the case of Mr Kung.

38.  Mr Kung pleaded guilty in good time earning for himself the customary one-third discount in sentence.  There are no other mitigating factors of weight to justify any other reduction in sentence.

39.  I consider the resulting sentence after discount to be fair, just and balanced in the circumstances of the case and of the offender.

40.  Mr Kung shall go to prison for 40 months and 20 days.