HKSAR v. Wong Ngon Ching

DCCC 627/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 627 OF 2015

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REASONS FOR SENTENCE

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1.The defendant (male) (aged 29), pleaded guilty before me to three counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The facts

2.The facts of the present case are relatively straightforward.  The trafficking activity carried out by the defendant as alleged in all the three charges took the form of selling packets of dangerous drugs by the defendant to a customer on three separate occasions on 21 April, 27 April and 3 May 2015 respectively.  The customer in question is PW1, a police decoy.

3.In Charge 1, PW1 successfully purchased from the defendant two packets containing a total of 26 grammes of a powder containing 22.5 grammes of ketamine at the staircase of Block A, 22nd Floor, Shin Kwan House, Fu Shin Estate, Tai Po.  PW1 paid HK$2,800 marked money to the defendant.

4.In Charge 2, the defendant sold one packet containing 11.4 grammes of a powder containing 6.51 grammes of ketamine, and two packets containing a total of 0.33 grammes of a solid containing 0.14 grammes of cocaine to PW1 at the staircase of Block A, 20^th Floor, Shin Kwan House, Fu Shin Estate, Tai Po.  On this occasion PW1 paid HK$2,300 marked money to the defendant.

5.In Charge 3, PW1 again successfully purchased from the defendant one packet containing 23.8 grammes of a powder containing 20.6 grammes of ketamine at the staircase of Block B, 20^th Floor, Shin Kwan House, Fu Shin Estate, Tai Po.  PW1 paid HK$2,800 marked money to the defendant.

6.Upon completion of the last transaction, the operation turned overt and the defendant attempted to flee but was subdued by the police officers at the scene.  Upon further search by the police, more quantity of ketamine was found on the defendant’s person, which included a metal box containing six packets containing a total of 22.4 grammes of a powder containing 13.7 grammes of ketamine and also another plastic bag containing 171 grammes of a powder containing 101 grammes of ketamine.  The police also found one electronic scale, two bundles of resealable plastic bags and two mobile phones.

7.The total drugs seized in these three purchases were 254.6 grammes of a powder containing 164.31 grammes of ketamine and 0.33 grammes of a solid containing 0.14 grammes of cocaine.  The estimated street value of the dangerous drugs was HK$30,552 for the ketamine and HK$378 for the cocaine at the time of the offence.

Criminal records and mitigation

8.The defendant had in the past been brought up to the court on six different occasions involving seven charges.  Apart from the first conviction in 2000, which was a theft for which he was sentenced to probation in the Magistracy, on all the other occasions they were in relation to drugs, mostly possession of dangerous drugs.  For all these drug offences, the defendant was invariably sentenced to the DATC with conviction recorded.  According to the record, he had been to the DATC three times already from 2008 to 2011.

9.The defendant was married and his wife was a mainlander living in the mainland.  At the time of arrest, he lived together with his elderly mother and his younger brother in Fu Shin Estate, Tai Po.  He only received an education up to Secondary 2 level and he was working as an air‑conditioning technician, working on a temporary basis.

10.In mitigation, Mr Chan Chung, counsel assigned by the Director of Legal Aid, told the court that the defendant was very remorseful and co‑operative with the police since his arrest.  Mr Chan said that it was a typical case where the defendant who was enticed by his undesirable friends had succumbed to temptation of the drugs and in order to feed his habit of consuming dangerous drugs and to solve his own financial difficulties, he foolishly and without thinking properly on its legal consequence committed the present offence.  Mr Chan however informed the court that the defendant will amend his ways and kick his habit after serving his time.

11.Mr Chan acknowledged that the present case involved three separate dangerous drug transactions on three different days but he asked the court to consider the principle of totality and therefore to at least impose a partially consecutive sentence if it is impossible to impose a concurrent sentence on all the three charges.

12.Mr Chan also told the court that before the defendant came to be involved in the habit of taking drugs, he was working once as a courier but unfortunately for the defendant, he had suffered injury in the back at work and had been assessed to have suffered from a small degree, namely 6 per cent, of permanent incapacity.  It was during that time when he was not working that he started to take the dangerous drugs.  Mr Chan described the defendant’s decision to take drugs as foolish and his later involvement with selling dangerous drugs as being reckless.  However, the defendant has prepared to face the consequences of his misdeeds.

Sentencing considerations

13.Trafficking in dangerous drugs is of course a very serious offence.  Anyone involved in trafficking in dangerous drugs, if caught, would expect to be severely dealt with by the court and in serious offences such as the present, family circumstances virtually play no part in mitigation.

14.Very often in trafficking cases the court can see that abusers of the drugs would invariably turn to trafficking in dangerous drugs in order to feed their drug habits.

15.In sentencing all these three charges, the quantity of the dangerous drugs is of course the most serious factor for consideration.

16.All three charges involve mainly ketamine, which represents most of the dangerous drugs except in Charge 2, there is also a small quantity of cocaine.  In Charge 1, the dangerous drugs involved is 22.5 grammes of ketamine.  The Court of Appeal has already laid down guidelines for sentencing of trafficking in ketamine.  In the case of Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323, for trafficking in a quantity of ketamine between 10 to 50 grammes, the starting point is said to be 4 to 6 years’ imprisonment.

17.Therefore, applying the tariff, for the quantity of 22.5 grammes of ketamine, the starting point should be 45 months’ imprisonment.

18.In Charge 2, the ketamine involved in the charge is 6.51 grammes of ketamine.  In Hii Siew Cheng (supra), for trafficking in a quantity of ketamine for more than 1 gramme to 10 grammes, the starting point is said to be 2 to 4 years.

19.Applying the same tariff, the starting point for 6.51 grammes of ketamine should be 42 months’ imprisonment.

20.However, in this charge, other than ketamine, there is also 0.14 grammes of cocaine.  I therefore have to consider whether, in the circumstances, I should also fix a starting point for cocaine, and to combine the starting point of cocaine and ketamine together to arrive at the appropriate starting point.

21.In HKSAR v Cho Hoi Kit [2012] 5 HKLRD 323, the Court of Appeal has said that in cases involving trafficking in dangerous drugs which were different in type, quantity and potency, the individual approach was to be preferred but, on the totality principle and to avoid a disproportionate sentence, the court should not simply add up the sentences suitable for each quantity of drugs, as the overall sentence might be higher if the whole quantity of the mixed drugs were of more serious kind.

22.Here in this charge, 99 per cent of the drugs comprised ketamine, which is less potent than cocaine.  Although cocaine is more potent in terms of potency, the quantity is relatively small.

23.Adopting a fair, realistic and commonsense approach, I do not consider that the presence of the present amount of the cocaine would have made much difference to the starting point even if the whole quantity of cocaine was converted to ketamine.  In term of a mathematical approach, this would not affect the starting point of the ketamine.

24.However, I still cannot totally disregard the presence or seizure of the two dangerous drugs.  To me, this is an aggravating feature which I cannot overlook.  In HKSAR v Chan Yuk Leong [2014] 2 HKLRD, the Court of Appeal has said that the presence of the two dangerous drugs adds two aggravating features, namely, first, that the trafficker could cater to a wider market and second, that the combination of both drugs was more dangerous than either taken alone.

25.In this charge, for the quantity of the ketamine, the starting point, as I said, was 42 months.  Taking into account the presence of a relatively small quantity of cocaine, I would increase the sentence by 3 months.

26.Therefore, for this charge, the starting point is also 45 months.

27.In Charge 3, we are dealing with 135.3 grammes of ketamine.  According to Hii Siew Cheng (supra), for the quantity as much as 50 to 300 grammes, the starting point is 6 to 9 years.  Applying this tariff, for the quantity of ketamine in this charge, the proper starting point should be 69 months’ imprisonment.

28.The defendant pleaded guilty in all these three charges, which is the only effective mitigating factor, and in each charge therefore the defendant is entitled to a one‑third discount.

29.After the deduction, the resulting sentence for Charge 1 and Charge 2 is both 30 months and for Charge 3 is 46 months.

30.The three trafficking counts happened on different days and on different occasions.  In principle, it is inappropriate for the court to consider passing concurrent sentences.  However, after consideration of the totality principle, I decided to adjust the sentence in the following way.

31.I will order that in each case of Charge 1 and Charge 2, 9 months’ imprisonment would be served consecutively with each other, making a subtotal of 18 months.  These 18 months will further be run consecutively to the sentence of Charge 3.  The total sentence for these 3 charges is therefore 64 months’ imprisonment.