HKSAR v. WONG TSZ KIN

DCCC 548/2021

[2022] HKDC 702

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 548 OF 2021

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REASONS FOR SENTENCE

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INTRODUCTION

1.   The defendant was convicted upon his own guilty plea of one charge of trafficking in dangerous drugs. The dangerous drugs involved were 35.5 grammes of ketamine and 3.47 grammes of ICE.

FACTS

2.  At about 2 am on 20 February 2021, police officers searched the private car driven by the defendant and found a black plastic bag inside the private car’s driver door storage compartment. 6 resealable plastic bags containing white solid (“Exhibit 2”)  were found inside the black plastic bag.

3.  A body search was then conducted on the defendant. Inside the defendant’s right front jacket pocket, the police found a tissue wrapping 2 resealable plastic bags containing transparent solid (“Exhibit 4”)  and 4 resealable plastic bags containing white solid (“Exhibit 5”).

4.  Upon Government Chemist’s examination and analysis, it was found that:

(i)  Exhibit 2 were 6 plastic bags containing a total of 12.2 grammes of a solid containing 10.6 grammes of ketamine;

(ii)  Exhibit 4 were 2 plastic bags containing a total of 3.48 grammes of a solid containing 3.47 grammes of methamphetamine hydrochloride (a salt of methamphetamine); and

(iii)  Exhibit 5 were 4 plastic bags containing a total of 28.7 grammes of a solid containing 24.9 grammes of ketamine.

5.  The estimated street value of the seized drugs in the month of February 2021 was HK$26,388.70, with the average retail price of HK$595 per gramme for ketamine and HK$590 per gramme for methamphetamine.

DEFENDANT’S CONVICTION RECORD AND BACKGROUND

6.  The defendant was born in January 1994 and is now 28 years old. He received education up to Form 2 level. Prior to the arrest, he worked as a fruit market transportation worker/driver and a Chinese medicine dispenser.

7.  He has 6 previous convictions, out of which there was a conviction of possession of dangerous drug(s)  in respect of which a DATC order was imposed on him in July 2013. He has 2 previous convictions of possession of offensive weapon sentenced in 2008 and 2013 respectively, 1 previous conviction of affray sentenced in 2010, 1 previous conviction of claiming to be a member of a triad society sentenced in 2010, and 1 previous conviction of gambling in a place not being a gambling establishment sentenced in 2019.

MITIGATION

8.  Counsel for the defendant Mr Leung submitted Written Submissions for Mitigation dated 5 July 2022 and Further Submissions for Mitigation dated 7 July 2022. He submitted to the court his calculations of respective starting points resulted from the individual approach and combined approach using ICE as the base drug as well as ketamine as the base drug. It was also submitted that the defendant committed the present offence in order to earn money to pay off a heavy debt for his sister.

9.  Mr Leung referred the court to the following authorities:

•  HKSAR v Yip Wai Yin and another [2004] 3 HKC 367

•  Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1

•  AG v Ching Kwok Hung [1991] 2 HKLR 125

•  HKSAR v Wong Kin Kau [2010] 4 HKC 443

•  HKSAR v Yau Ka Ming CACC 144/2013

10.  This case involves 2 kinds of dangerous drugs. Between the combined approach and individual approach, Mr Leung suggested adopting the combined approach. Having calculated different starting points resulted from absurdity test, conversion test and ratio test, Mr Leung submitted that the overall starting point should be no more than 6 years and 3.5 months’ imprisonment.

SENTENCE

11.  In the present case, there were 3.47 g of ICE and 35.5 g of ketamine. The quantity of ICE represented 8.9 per cent of the total drugs, whereas the quantity of ketamine represented 91.1 per cent of the total drugs. Having considered the judgment in HKSAR v ISLAM S M MAJHARUL [2020] HKCA 300, particularly paragraphs 26 and 27 thereof, I am of the view that the correct base drug in the present case is ICE.

12.  I bear in mind the respective sentencing tariffs for trafficking in ICE and ketamine laid down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and Hii Siew Cheng.

13.  The starting point for trafficking of 3.47 g of ICE should be 4 years and 4.656 months made up as follows:

3 years + 3.47 g x (4.8 months/g)  = 3 years + 16.656 months

= 4 years and 4.656 months

14.  The starting point for trafficking of 35.5 g of ketamine should be 5 years and 3.3 months made up as follows:

4 years (for the 1^st 10 g)  + 25.5 g x (0.6 month/g)  = 4 years + 15.3 months

= 5 years and 3.3 months

15.  If the individual approach is adopted, the overall starting point will be the aggregate of 4 years and 4.656 months and 5 years and 3.3 months, i.e. 9 years and 7.956 months.

16.  If the combined approach is adopted using ICE as the base drug, the overall starting points resulting from various tests will be as follows:

(i)  Absurdity test

The starting point for trafficking of 38.97 g of ICE should be made up as follows:

7 years (for the 1^st 10 g)  + 28.97 g x (0.8 month/g)

= 8 years and 11.176 months

(ii)  Conversion test

35.5 g of ketamine would have attracted 5 years and 3.3 months’ imprisonment, similar to that which would be imposed for trafficking of 5.6875 g of ICE by the following calculation:

63.3 months = 36 months + 5.6875 g x (4.8 months/g)

The aggregate of 5.6875 g of ICE and 3.47 g of ICE is 9.1575 g of ICE which would have attracted

3 years + 9.1575 g x (4.8 months/g)  = 3 years + 43.956 months

= 6 years and 7.956 months

(iii)  Ratio test

Dangerous drug	Sentence assuming 38.97g of single drug	Ratio	Sentence
ICE	8 years and 11.176 months	8.9%	9.539 months
Ketamine	4 years (for the 1st 10 g) + 28.97 g x (0.6 month/g)= 5 years and 5.382 months	91.1%	59.56 months

Total: 69.1 months

(5 years and 9.1 months)

17.  I adopt the approach set out in paragraph 27 of the judgment in ISLAM S M MAJHARUL. The starting point for 3.47 g of the base drug ICE is 4 years and 4.656 months’ imprisonment.

18.  Having considered (i)  the quantity of ketamine involved in this case, (ii)  the starting point for trafficking of 35.5 g of ketamine, i.e. 5 years and 3.3 months, and (iii)  the respective sentences resulted from the aforesaid absurdity test, conversion test and ratio test, I will increase the overall starting point to 75 months’ imprisonment.

19.  As a result of the defendant’s timely indication of his guilty plea, I will give him 1/3 discount on sentence. There being no other valid mitigating factors justifying further reduction in sentence, the defendant is sentenced to 4 years and 2 months’ imprisonment.