HKSAR v. Wong Chi Nam

HCCC 376/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 376 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Mr Wong, you have pleaded to trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and stand convicted upon your own plea. You have pleaded guilty to trafficking in 153.11 grammes of ketamine, 14.1 grammes of cocaine and 8.83 grammes of methamphetamine hydrochloride, or ‘Ice’ as it is commonly called, and three tablets containing 0.03 grammes of methamphetamine.

The street value of those drugs is $56,186.

The facts of this case have been read out to you by Miss Ng of the prosecution and you have agreed them but, in essence, they are that you were stopped by officers outside Flat E of the 13th Floor of Taiyuan House, Tsuen Wan Centre, 98 Tsuen King Circuit, Tsuen Wan, with a paper bag which was found to contain the 153.11 grammes of ketamine which you said at the time was for your own consumption, but you now tell the court, honestly, that it was for trafficking. That is to your credit.

Inside that address were found several bags which contained varying amounts of other drugs which consisted of more ketamine with some cocaine and ‘Ice’, as well as a very small amount of methamphetamine. The tools of a drug dealer were also found because you possessed an electronic scale and a bundle of resealable plastic bags.

You were uncooperative on arrest, having tried to run into the flat to escape and by refusing to sign any police documentation. Later, you refused to say anything in interview.

You are now 36 years of age and you have a significant criminal record which started in 1994 when you were only 15 years old for possession of dangerous drugs, and continued immediately thereafter with matters of burglary and theft escalating to robbery by the time you were 26. I note that you say you have abused ‘Ice’ since you were just 15. I also note what counsel says on your behalf that you no longer have any triad affiliations.

Whilst I take into account your previous offending history it will not affect the sentence which must be passed upon you for trafficking in dangerous drugs, as this is the first time you have appeared before the courts for an offence of this type. But I do have to consider the sentence you are currently serving of 16 months for the possession of dangerous drugs and for the possession of a false ID card.

I have read your letter and I have also taken into account all that has been said on your behalf by Mr McNamara, including your early indication of plea, limited educational background, your lack of significant previous employment until 2009 when you became a logistics worker, and the fact that you kept that job until 2013 when you quit and resorted once more to drugs. It was the need to feed that habit which led to this offending. That is very unfortunate as you appeared to have turned your life around and you have the support of your girlfriend and family.

Bearing in mind that my approach should not be strictly numerical but trying as best as I can to find an even‑handed approach to sentencing this cocktail of drugs, I have considered that if I were to sentence you in accordance with the guidelines for each of the drugs to which you have pleaded guilty to trafficking, then under R v Lau Tak Ming [1990] HKLR 370, you would be looking at a starting point of 5 years and 4 months after trial for the 14.1 grammes of cocaine. Under HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, there would be a starting point of 6 years and 6 months for the ‘Ice’, and for the 153.11 grammes of ketamine under Secretory for Justice v Hii Siew Cheng CACC 126/2007, you would receive a starting point after trial of 7 years and 3 months. That would make a starting point of 19 years and 1 month in total.

I have also considered all that was said in HKSAR v Chan Yuk Leong CACC 318/2013 and the authorities referred to therein, and it would appear to me that the ratio test in HKSAR v Yau Ka Ming CACC 144/2013 is appropriate to consider in these circumstances.

I have therefore considered the total amount of narcotic and that is 176.04 grammes, and I have taken account of the sentence that it would have attracted if it have been made up entirely of ‘Ice’. It would have attracted a starting point for sentence after trial of 12 years and 10 months.

But the ‘Ice’ was just 5 per cent of the total narcotic content and would therefore attract a sentence in the region of just 7.7 months. Whereas, if it have been 176.04 grammes of cocaine, it would have attracted a starting point of 11 years and 4 months but the cocaine represented only 8 per cent of the total narcotics and therefore would attract a sentence in the region of 10.88 months.

If there have been 176.04 grammes of ketamine, the starting point would be 7 years and 6 months, but the ketamine represented 87 per cent of the total narcotic and therefore the sentence should be 78.33 months.

The range is therefore between 7 years and 6 months and 12 years and 10 months, or if rounded out to represent the percentage of the individual drug within the total narcotic content it would be approximately 8 years and 1 month.

I then compared this with the conversion test which led to a total amount of ‘Ice’ in the region of 27.58 grammes of ‘Ice’ if converted which would attract a sentence of 8 years and 2 months.

Taking into account the principle of totality and the fact that the availability of a cocktail of drugs may make the dealer more commercially attractive, I take a starting point after trial of 8 years and 3 months.

Giving you a discount for your guilty plea, you will go to prison for 5 years and 5 months which will run concurrently with the remainder of the sentence which you have to serve for the possession of dangerous drugs and the possession of a false ID.