HKSAR v. Wong Wai Ki and Another

DCCC 447/2018

[2018] HKDC 1535

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 447 OF 2018

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REASONS FOR SENTENCE

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1.The first defendant pleaded guilty to one count of “trafficking in dangerous drugs”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (charge 1). The second defendant pleaded guilty to one count of “possession of dangerous drugs”, contrary to section 8(1)(a) and (2) of the same ordinance.

Facts

2.On 11 January 2018 at around 6:10 pm, police officers saw the first defendant open the door to leave Room G3 of the premises as particularized in charge 1 (“the Room”).  Police officers entered the Room and found the first and second defendants therein. 

3.Upon search of the Room, 1 transparent re-sealable plastic bag containing 19 transparent re-sealable plastic bags containing 10.7 grammes of ketamine and 1 transparent re-sealable plastic bag containing 21 packets containing 3.80 grammes of cocaine were found underneath a pillow on the bed therein.

4.A chain of two keys, cash of HK$11,053.6 and one mobile phone were found on the first defendant.

5.The first defendant was arrested for “trafficking in dangerous drugs”.  Under caution, the first defendant said, “Ah Sir, the dangerous drugs are perfume and soft drink.  They are all mine, and have nothing to do with other people.”

6.Upon search, one HK$20 banknote folded into a packet containing 0.01 gramme of a solid containing ketamine and one plastic bag containing 0.32 gramme of a solid containing 0.27 gramme of ketamine and another HK$20 banknote folded into a packet containing 0.04 gramme of a solid containing cocaine were found in the right back pocket of the second defendant’s trousers.

7.Cash of HK$215.5 (excluding the two banknotes containing the drugs), cash of RMB¥6 and one mobile phone were found on the second defendant.

8.The second defendant was arrested for “possession of dangerous drugs”. Under caution, the second defendant said, “Ah Sir, the drugs contained in the two banknotes you found are for my self-consumption.  I know I was wrong.”

9.In subsequent video-recorded interview, the first defendant admitted that he worked as a delivery worker, the chain of keys found on him were the key to the main door leading to the Room and the key to the Room respectively, that the cash of HK$11,053.6 found on him belonged to him, HK$9,853.6 of which was his savings from work, and was intended to be exchanged into Thai Baht for his trip in Thailand which was scheduled on 12 January 2018.

10.In subsequent video-recorded interview, the second defendant admitted that on 11 January 2018, at around 3:36 p.m., he got a message indicating that ketamine was available for sale in the Room, he indicated he wanted one pack of ketamine and one tablet of cocaine before going to the Room, when he arrived at the Room, the first defendant had already prepared one pack of ketamine and one tablet of cocaine, the second defendant paid HK$800 to the first defendant for these drugs for his self-consumption, he consumed some of the drugs he purchased in the toilet of the Room and wrapped the remaining drugs with HK$20 banknotes.

11.Urine sample collected from the first defendant on 13 January 2018 was tested positive for amphetamine.

12.Urine sample collected from the second defendant on 14 January 2018 was tested positive for cocaine.

13.The estimated street value of the drugs found under the pillow was HK$12,067.68 and that for the drugs found on D2 was HK$232.81.

Mitigation

14.The first defendant is aged 21, single and lives with his parents.  His father is suffering from mental illness and other illnesses requiring regular check up.  His mother is a housewife.  She had surgery for brain cancer and has to attend frequent checkup.  At the time of the offence, the first defendant was working as a delivery worker earning about HK$14,000 per month and he would contribute HK$5,000 for the family expenses.  He has 5 previous conviction records, none of them are similar to the present offence.

15.In mitigation, it was submitted that the first defendant first started to take drugs at the age of 17.  He had been sentenced to DATC in the past for other offences and he was free from drugs after discharge.  However, shortly before the present offence, the first defendant had argument with his girlfriend, as a result of which he started to take drugs again.  It was submitted that half of the quantity of the cocaine seized was for the first defendant’s own consumption and the court was urged to grant him a discount for this.  The first defendant was remorseful and determined to turn over a new leaf.  He planned to further his studies while serving the sentence.  It was further submitted that the starting point would be about 4 years and 4 months according to the conversion test and the court was urged to impose a lenient sentence on the first defendant.

16.The second defendant is aged 39, single and lives with his parents.  He has 3 previous conviction records, all relate to dangerous drugs.  He was last sentenced to DATC in January 2017 in respect of possession of dangerous drug. Since June 2018, the second defendant has been working in the construction site earning about HK$30,000 per month.

17.In mitigation, it was submitted that the second defendant committed the present offence as he broke up with his girlfriend.  After the arrest, he was detained and then recalled by DATC.  He received treatment for 3 months and released from DATC on 18 April 2018.  Then, he was further detained until 7 June 2018.  In other words, he had been detained for about 6 months.  After he was granted bail, he quickly got a job and has been working for the same employer since then.  Counsel for the second defendant urged the court to consider imposing a fine given the quantity of drugs involved was not substantial, that the second defendant had a stable job now, that he had already received treatment from DATC and had not taken any drugs since then and that he had been detained for 6 months.

Sentence

18.The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see R v Lau Tak Ming & Ors [1990] 2 HKLR 370) and ketamine (see Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1).  For trafficking up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years’ imprisonment.  For trafficking in 10 grammes up to 50 grammes of ketamine, the sentence ranges from 4 to 6 years’ imprisonment. 

19.In cases involving trafficking in more than one type of drugs, the Court of Appeal has set out two different approaches, namely the combined approach and the individual approach (see HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367 and HKSAR v Wan Lau Mei CACC 389/2013).  In HKSAR v Chan Yuk Leong CACC 318/2013, the Court of Appeal also mentioned the conversion test as a means to cross check the appropriate starting point. 

20.Having considered the starting point arrived at in the individual approach and the combined approach and cross-checked with the conversion test, I accept the suggestion from the defence that the appropriate starting point for charge 1 is 4 years and 4 months. 

21.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, it was submitted that half of the quantity of the cocaine seized was for self- consumption. There is evidence that the first defendant did take drugs.  In the circumstances, I am prepared to accept that a significant proportion of the drugs was for his own consumption and therefore reduce the starting point by 6 months to reflect the discount for self-consumption.  Therefore, the starting point for charge 1 is 46 months.

22.Since the first defendant pleaded guilty to charge 1, he is entitled to the usual 1/3 discount.  Therefore, the sentence for charge 1 is reduced to 30 months’ imprisonment.  Apart from the above, there is no other mitigating factor justifying further reduction of sentence.  I hereby sentence the first defendant to 30 months’ imprisonment.

23.As far as the second defendant is concerned, he was found in possession of 0.04 gramme of cocaine and 0.27 gramme of ketamine. 

24.The amount of drugs involved is not substantial.  The second defendant was remanded for almost 6 months.  During the remand, he was recalled by DATC and received treatment thereat.  Apparently, the second defendant is free from drugs now and has stable employment since he was granted bail in early June this year.  In view of all these factors, I accept counsel’s suggestion and consider it would be appropriate to deal with the second defendant by way of a fine in the special circumstances of this case.  The second defendant is fined HK$5,000, to be deducted from his bail money.