HKSAR v. Wong Ying Ming, Gary

DCCC 519/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 519 OF 2015

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REASONS FOR SENTENCE

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1.The second defendant pleaded guilty to two counts of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (the second and third charges). The dangerous drug involved is ketamine.

Facts

2.At around 6:16 pm on 9 March 2015, police officers were observing a private car (V1) with the second defendant and a driver on board.  The car was parked outside No 356 Un Chau Street, Cheung Sha Wan, Kowloon. 

3.A few minutes later, police officers saw the first defendant of this case alight from another private car (V2), walk towards V1 and talk to the second defendant.  Then, the first defendant handed HK$1,100 to the second defendant.  In return, the first defendant got from the second defendant a white tissue paper wrapping a packet containing 13.4 grammes of a powder containing 5.93 grammes of ketamine and walked back to V2.

4.A police officer then approached the second defendant who was sitting on the front passenger seat of V1.  At that time, the second defendant was holding a white Samsung mobile phone in his left hand and three banknotes totaling HK$1,100 in his right hand.  Subsequently, the officer seized the said banknotes and the mobile phone.  Then, the second defendant was taken out of the car.  The officer asked the second defendant how he got HK$1,100 and if he knew the driver of V1.  The second defendant remained silent. He was then arrested for trafficking in a dangerous drug.

5.Upon search of V1, the following items were found:

1) In the glove compartment on the right side of the steering wheel: two paper packets containing a total of 0.35 grammes of a powder containing 0.28 grammes of ketamine and one plastic bag containing 3.11 grammes of a powder containing 2.45 grammes of ketamine.

2) In the front passenger seat glove compartment:

a)four plastic bags each containing one plastic bag containing a total of 11.66 grammes of a powder containing 8.66 grammes of ketamine;

b) one cigarette box containing (i) one paper packet containing 0.15 grammes of a powder containing 0.13 grammes of ketamine; (ii) one paper packet containing 0.04 grammes of a powder containing ketamine; (iii) one plastic bag containing 0.01 grammes of a powder containing ketamine; and (iv) one plastic straw segment containing traces of a powder containing ketamine;

c)one black plastic bag containing (i) 10 plastic bags each containing 1 plastic bag containing a total of 133.10 grammes of a powder containing 91.39 grammes of ketamine; and (ii) one transparent re-sealable plastic bag containing 10 plastic bags each containing 1 plastic bag containing a total of 25.50 grammes of a powder containing 17.76 grammes of ketamine.

d) Banknotes amounting to HK$1,200, one black plastic bag containing a wad of banknotes amounting to HK$8,000 and one box of cigarettes.

6.Call record analysis revealed that the second defendant had contact with the first defendant and driver of V1.

7.Under caution, the second defendant admitted that he paid HK$10,000 for buying about 200 grammes of ketamine at Tseung Kwan O at about 12:00 pm earlier that day.  Afterwards, he met driver of V1 who then drove to Sham Shui Po.  As he received an order from the first defendant through the mobile phone seized, he asked the first defendant to meet him at Un Chau Street.  Later, the first defendant arrived and walked to V1’s front passenger seat where the second defendant was sitting.  The first defendant handed HK$1,100 to him.  In return, he handed a packet of ketamine to the first defendant.   

8.The second defendant further admitted that the ketamine found in V1 belonged to him.  He also confirmed that he took the ketamine packed in the black plastic bag with him when he boarded V1 and hid it inside V1 without the driver’s knowledge.

9.A total of 31 packets of ketamine were seized.  Other than the packet sold to the first defendant, there was 173.92 grammes of a powder containing 120.67 grammes of ketamine.

10.The street value of the ketamine seized was HK$22,104 at the material time. 

Mitigation

11.The second defendant is aged 34, single and was living with his younger brother before arrest.  He had previously worked in a warehouse earning about HK$10,000 per month.  He had been unemployed for two weeks prior to the arrest.  He has 5 previous conviction records, one of which is for possession of dangerous drugs in 2012 and he was put on probation for 12 months.

12.In mitigation, it was submitted that the second defendant was a drug addict.  The ketamine found was partly for his own consumption and partly for trafficking.  At the time of arrest, he was in possession of a cigarette box containing a straw which he used to consume ketamine.  I was referred to HKSAR v Wong Suet Hau & anor [2002] 1 HKLRD 69 and was asked to adjust the sentence to reflect the fact that not all the ketamine was for trafficking.

13.It was further submitted that the key mitigating factor is the second defendant’s guilty plea.  Since the ketamine sold to the first defendant came from the bulk of ketmaine seized, I was asked to impose concurrent sentences on the two charges faced by the second defendant.

Sentence

14.The second defendant has been convicted of two counts of trafficking in a dangerous drug on the same day.  It is well settled that in sentencing in a case like this, I should regard the two offences as representing one occasion of possession of the total amount of drugs and impose sentences on both offences for that total, making the sentences concurrent with one another (see HKSAR v Wan Lau Mei, CACC 389/2013).

15.The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1).  For trafficking in 50 to 300 grammes of ketamine, the sentence ranges from 6 to 9 years’ imprisonment.  The total amount of ketamine trafficked by the second defendant is 126.60 grammes.  For this quantity, the appropriate starting point is 82 months’ imprisonment. Therefore, I adopt 82 months’ imprisonment as the starting point for each charge. 

16.Regarding the claim for self-consumption, I have reminded myself the relevant principles in HKSAR v Wong Suet Hau & anor [2002] 1 HKLRD 69 and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.  In the former case, it was held by the Court of Appeal that where it was accepted that a significant proportion of the drugs were for the defendant’s own consumption, the court should adjust the sentence to reflect the fact that not all the drugs were for trafficking.  However, it was not necessary for the sentencing judge to specify the relative amounts or proportions.  In the latter case, the Court of Appeal held that a discount between 10% and 25% from the basic starting point would be appropriate in cases where all or part of the drugs were intended for trafficker’s own consumption. In the present case, there is no evidence to rebut the allegation of self-consumption. It is also clear from the facts that the second defendant had in his possession a straw to be used for consuming ketamine.  In the circumstances, I am prepared to accept that part of the drug was for his own consumption and therefore reduce the starting point for each of the two charges by 10 months to reflect the discount for self-consumption. 

17.Since the second defendant pleaded guilty to the charges, he is entitled to the usual 1/3 discount on his guilty plea.  Therefore, for each of the two charges, the sentence will be further reduced to 48 months’ imprisonment.  The sentences for the two charges are to be served concurrently, making a total sentence of 48 months’ imprisonment.  I hereby sentence the second defendant to 48 months’ imprisonment.