HKSAR v. Wong Tsz Hong

DCCC 325/2018

[2018] HKDC 1373

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 325 OF 2018

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Reasons for Sentence

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1.The Defendant has pleaded guilty to one count of Trafficking in dangerous drugs which involves 22.1g cocaine and 0.94g ICE.

2.At about 11:38pm on 17 January 2018, some police officers found an unattended clutch bag at the top of a game machine near the entrance of the game centre in Ngau Tau Kok in which they were conducting an anti-crime patrol.  These officers then made enquiries and the Defendant appeared and claimed to be the owner of the bag.  Upon search, the subject drugs were found in two re-sealable plastic bag respectively inside the bag.  The Defendant was arrested and cautioned.  He claimed to the police officers that the drugs were for his own consumption.

3.In a subsequent video-recorded interview, the Defendant said, inter alia, that he had been a cocaine addict for about 3 months.  He usually spent HK$1,000 to 1500 on drugs.  His average dose was 1 – 2 grammes each time.  He bought the cocaine at HK$8,000 at the game centre from an unknown man and the ICE was given to him by that man as a gift for a try.

4.The estimated street value of these drugs were HK$24,499 and HK$541 making a total of HK$25,040.

Mitigation

5.The Defendant is a young man of 21 years old.  He has one Trafficking in Dangerous Drug previous conviction in 2012 and he was sent to the Training Centre.

6.There are also two mitigation letters.  In short, I can see that the family is disappointed by the Defendant but they continue to support him to turn a new leaf.  The Defendant expressed his remorse and I am quite sure his misconduct is caused by bad influence.

7.In mitigation, the Defence Counsel has tried the very best to convince me that the drugs in this case were for self-consumption.

Consideration of Sentence

8.It was held in Attorney General v Pedro Nel Rojas CAAR 15/1993 that the tariffs for trafficking in heroin in R v Lau Tak Ming [1990] 2 HKLR 370 should apply to trafficking in cocaine.  For the purpose of sentencing in the present case, the relevant tariffs are as follows:

a) Up to 10 grammes: 2 – 5 years;

b) 10 – 50 grammes: 5 – 8 years;

c) 50 – 200 grammes: 8 – 12 years;

d) 200 – 400 grammes: 12 – 15 years.

9.Accordingly, it would have attracted a sentence of about 5 years and 11 months for 22.1g cocaine.

10.For ICE, I have referred to the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 albeit that it is mainly on the approach for large quantity drug trafficking.    The Ching Kwok-hung guidelines were recast but the relevant tariffs for relative small amounts of trafficking remain unchanged and the relevant ones are:

a) Up to 10 grammes: 3 – 7 years;

b) 10 – 70 grammes: 7 – 11 years;

c) 70 – 300 grammes: 11 – 15 years;

d) 300 – 600 grammes: 15 – 20 years.

11.In the present case, the quantity of ICE was 0.94g which, in applying the tariffs, would attract a 3-year starting point.

12.This brings me to the consideration of the case of HKSAR v KO Ka-hing [2009] 4 HKLRD 856 regarding the “Individual Approach” and the “Combined Approach” when there is more than one type of drugs involved in sentencing a case of trafficking in dangerous drugs.  I do not think the “Individual Approach” would give an appropriate sentence in this case.

13.But on the other hand, in adopting the “Combined Approach”, I do not consider that the ICE in the present case is insignificant despite the remark of the Court of Appeal in Ko Ka-hing that “no such adjustment is required if the less serious drug is present in insignificant quantity” (see p.445). 

14.That said, I have considered HKSAR v Lam Cheuk Hei CACC7/2017.  In the appeal proper, the Court of Appeal acknowledged “the strong sense of common sense” (see para.19) for taking the kind of drug that attracts heavier starting point, taking into account the type and quantity against the potency of the drugs, as the base despite that the other type(s) of drug involved might be of a more potent nature.  I am of the view that, in the present case, despite that ICE is the more potent drug, I shall treat cocaine as the base for sentencing in light of its more significant quantity and the resulting starting point.   

15.Having carefully considered the arithmetical aspects, with particular reference to the case of HKSAR v Chan Yuk Leong CACC318/2013, where the Court of Appeal demonstrated how the well-known 3 cross-checking tests should work, I have arrived at the following figures:

22.1g Cocaine and 0.94g ICE would become

Under Absurdity Test:

5 years and 11 months if the drugs were treated as Cocaine

(For reference 20g = 5yrs and 9 months)

7 years and 8 months if the drugs were treated as ICE

(For reference 25g = 8yrs)

Under Conversion Test:

Taking the common point of 15 years, where it would be 400g for cocaine and 300g for ICE, the conversation rate would be 1.33.

Converting to cocaine:

0.94 (ICE) x 1.33 = 1.29g cocaine

22.1 cocaine + 1.29 converted cocaine = 23.39g cocaine

The starting point would become 6 years

Converting to ICE:

22.1 (cocaine) / 1.33 = 16.6g ICE

0.94 ICE + 16.6 converted ICE = 17.54g ICE

The starting point would become 7 years and 6 months

Under Ratio Test:

22.1g (cocaine) = 95.9%

0.94g (ICE) = 4.1% of total 23.04g quantity of drugs

23.04g ICE would give a starting point of 7 years and 8 months (92 months)

23.04g cocaine would give a starting point of 5 years and 11 months (71 months)

92 x 4.1% + 71 x 95.9% = 3.8 months + 68 months

So the rounded up starting point would be 72 months (i.e. 6 years)

16.In these premises, I shall adopt the “Combined Approach” and take cocaine as the “base” of sentence in the present case.  And I shall adjust the 5 years and 11 months starting point by adding 1 month.  In other words, it would be a starting point of 6 years. 

17.It would be consistent with the result under the “Ratio Test” and in my view it would be a more reasonable overall sentence for this case.

18.Moving on to consider the submissions on self-consumption, I have considered the case of HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 691.  I have also considered the whatsapp messages found in the phone of the Defendant.  Having carefully considered, I am of the view that the words of the Defendant in the messages do not suggest one way or the other.  But on the other hand, the Defence accept that the burden lies on the Defence to persuade this Court as to whether the subject drugs or any part of the subject drugs were for self-consumption. 

19.Bearing in mind that the question is not whether the Defendant would consume drug(s) on other occasions, but whether any part of the subject drugs would be consumed by the Defendant, I am not satisfied that the Defendant could have obtained the drugs at the price (i.e. $8,000) for the subject drugs and consequently I am not satisfied that any of the drugs in question was for his self-consumption in light of all the circumstances in this case.  However, the Defendant is entitled to a 1/3 discount for his guilty plea.

20.Consequently, the Defendant is sentenced to 4 years’ imprisonment.  I do not see any further reduction justified.