HKSAR v. Wong Chi Ming

DCCC 368/2018

[2018] HKDC 1606

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 368 OF 2018

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REASONS FOR SENTENCE

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1.In this case the defendant, WONG Chi Ming, pleaded guilty to, and was convicted of, one count of trafficking in dangerous drugs.

2.The facts revealed that on 30 December 2017, at about 8 pm, the defendant was intercepted outside his residence in Kwong Yee House, Tai Po.  Initial body search revealed that he carried two mobile phones and had HK$10,000 and 400 Renminbi with him.

3.Upon search of his house, the police found two bags of substance with a total weight was 40.8 grammes containing 9 grammes of ketamine.  There were also two bags of cannabis in herbal form, total weight 14.42 grammes; and six bags of substance, containing 3.13 grammes of cocaine. In addition, the police found a large quantity of resealable plastic bags, an electronic scale with traces containing cocaine and a plastic spoon.  From the facts, at least as far as the cocaine was concerned, it is clear that the defendant was using paraphernalia to divide the cocaine into different bags. 

4.The estimated market value of the total amount of drugs found was $14,000.

5.Under caution the defendant said he bought the ketamine, the cocaine and the cannabis for his own consumption.

6.In the subsequent cautioned interview, the defendant gave further details of how he obtained the dangerous drugs and that he made $700 per day as a delivery assistant.  He also explained how much cocaine, cannabis and ketamine he consumed. 

7.Basically the defendant was a walking 7-11 store for dangerous drugs.  Trafficking in dangerous drugs is a serious offence in Hong Kong and the Court of Appeal has already set out guidelines for trafficking different categories of dangerous drugs.  In respect of ketamine, the present case falls within the 1 to 10 grammes bracket; warranting a term of imprisonment of 2 to 4 years according to the case of Hii Siew Cheng. In respect of the cocaine, according to the authority of Lau Tak Ming, the present case falls within the up to 10 grammes category warranting a term of imprisonment of 2 to 5 years.  Tuen Shui Ming is an authority for trafficking in the cannabis resin.  For trafficking in cannabis resin under 2,000 grammes, the term of imprisonment should be under 16 months, although this court takes into account the fact that the quantity of the cannabis found in this case is of a herbal form and is a much less potent form of dangerous drug.

8.Trafficking in different kinds of dangerous drugs warrant different terms of imprisonment in accordance with the quantity involved.  Defence counsel has helpfully set out various calculations.  This was not opposed by the prosecution.  On a purely arithmetic basis, the starting point for cocaine should be about 35 months.  For ketamine, the present quantity warrants a term of imprisonment in the range of 44 months.  The Court of Appeal has on previous occasions discussed what is the proper approach in sentencing for dangerous drug trafficking when it involves different kinds of dangerous drugs.

9.In the present case I believe a global approach, that is, taking into account of the most serious drugs as a starting point and then take into account of the other less serious dangerous drugs involved.  The ketamine in this case, in view of its quantity, is the most serious one. Having taken into consideration of the case of HKSAR v Chan Siu Yeung, CACC 325/2009, I will use 45 months as a starting point.  Taking into consideration of the cocaine, which on its own normally warrant a term of imprisonment for 30 months, and also taking into consideration of the almost negligible amounts, a term of imprisonment for trafficking in cannabis.

10.I also take into account of the contention that the defendant alleged part of the drugs were used for his self-consumption. Although the defence contended about 10 per cent of the drugs he kept for self-consumption, I do not consider this is a significant proportion.  I do however consider it is part of the factual matrix in the background for me to consider a starting point.

11.Having considered the case as a whole and also the factors I refer to, I will adopt 52 months as a starting point.  This seemed to be about right when it is tested against the methods as suggested by the High Court, namely, the absurdity test, the conversion test and the ratio test.  And having applied these tests, I am satisfied that 52 months seems to be a fair starting point in view of the drugs involved.

12.I turn to consider the mitigating factors in this case.  The defendant is aged 18, no doubt a young person; but in 2016 he has already had a drug-related conviction for which he was sentenced to a term of probation for 15 months.  In any event, youth on its own, as has been repeatedly pointed out by the Court of Appeal, should not be a mitigating factor in cases of this nature, otherwise it would be indirectly encouraging people to use young people to traffic in dangerous drugs.  I have also considered the mitigating letters furnished by members of his family and also his ex-employer.  He came from a rather complicated family, dysfunctional even, nonetheless his family members seem to be very supportive.  Again, I do not see that this is a valid mitigating factor.  The only useful mitigation in this case is the fact that he pleaded guilty.

13.In the circumstances, I will accord him with the usual one-third deduction to reflect his guilty plea.  Strictly speaking, he should be sentenced to a total of 34.6 months.  To round it up, I will order him to be sentenced to the term of imprisonment of 34 months for the present offence taking into account of his guilty plea, the fact that he was young and the fact that he contended some of the drugs were used for his own self-consumption.