HKSAR v. Wong Tsz Leung

DCCC 230/2020

[2020] HKDC 1160

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 230 OF 2020

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He has admitted unlawfully trafficking in 23.1 grammes of a solid containing 12.3 grammes of cocaine and 13.6 grammes of a solid containing 11.8 grammes of ketamine. The particulars are that on 16 January 2020, at customs departure hall at the Hong Kong‑Macau Ferry Terminal, he unlawfully trafficked in those dangerous drugs.

Facts of the Charge

2.The defendant was departing Hong Kong for Macau on 16 January 2020, and at around 10 pm he was intercepted by a senior customs officer for customs clearance.  He was searched and drugs were found in the insoles of his shoes.  One reusable plastic bag containing cocaine were found under the insole of his right shoe.  Two resealable plastic bags containing ketamine were found under the insole of his left shoe. Subsequently, a government chemist confirmed the nature and quantity of those drugs. 

3.The defendant was arrested and cautioned after the search whereupon he informed the customs officer that the drugs in his right shoe was cocaine and the drugs in his left shoe was ketamine.  He claimed that all the dangerous drugs were for his own self-consumption.  The defendant was also in possession of $8,199, two mobile phones with two SIM cards and a ferry ticket from Hong Kong to Macau.  There was a subsequent house search where no drugs or any drug-related paraphernalia were found. 

4.The defendant agreed that the street value of the cocaine and ketamine were $25,918.20 and $6,908.80 respectively, a total street value of $32,827. 

Mitigation

5.Defence counsel, Mr Lee, has said all he can say on behalf of the defendant.  The defendant is now 25 years old, single and living with his mother.  His father has passed away.  At the time of his arrest, he was unemployed.  He was educated up to secondary school Form 3 level.  He is single and has a clear record. 

6.In mitigation, I have heard he lost his job just before Chinese New Year this year and needed money for the holiday and his mother.  He would share his salary with his mother.  He was tempted by quick money to be earned delivering drugs to Macau.  He is now remorseful and learnt a bitter hard lesson. 

Trafficking Guidelines

7.Trafficking in a dangerous drug is a serious offence.  On conviction on indictment, a person is liable to a fine of HK$5 million and to imprisonment for life.

8.The sentencing guideline for cocaine itself is found in the authority of R v Lau Tak Ming [1990] 2 HKLR 370. In the Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, the Court of Appeal held that the sentencing guidelines in Lau Tak Ming, which are directed at trafficking heroin, are equally to be applied in cases of cocaine trafficking.  The starting point for trafficking between 10 to 50 grammes of cocaine is 5 to 8 years’ imprisonment.  Therefore the starting point for trafficking in 12.3 grammes of cocaine in this case, mathematically speaking, is 5 years and 2 months. 

9.The sentencing guideline for trafficking in ketamine is found in the authority of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  The Court of Appeal held that where between 10 to 50 grammes of ketamine is trafficked, the starting point will be between 4 to 6 years.  Therefore the starting point for trafficking in 11.8 grammes of ketamine in this case, mathematically speaking, is 4 years and 1-month’ imprisonment. 

10.In this case, there are two types of drugs for unlawful trafficking.  There are two approaches to sentencing in this situation, namely the individual approach and the combined approach.  It would be sensible to take the combined approach here where the total quantity of drugs will be converted into the quantity of either the most serious or the most prevalent of the two drugs.  Often a combined approach produces the more realistic sentence. 

11.I have referred myself to HKSAR v Leung Chun Pong [2009] 6 HKC 272 and HKSAR v Wong Kin Kau [2010] 4 HKC 443.  The prosecution has referred me today to HKSAR v Islam S M Majharul, CACC 67/2019.  The Court of Appeal here have again reiterated the methodology in sentencing those trafficking two or more different types of drugs.

12.The methodology of this combined approach is to first calculate the applicable sentence for the more serious drug and then make an upward adjustment to take into account significant quantities of the other drug. In HKSAR v Chan Yuk Leong, CACC 318/2013, the Court of Appeal held that the court should take the most serious drug and adjust it upwards for the other drug.  The court there discussed three means of cross-checking whether the sentence was manifestly excessive.  The first test was the absurdity test, the second test was the conversion test and the third test was the ratio test.

13.I have set out above the starting points for the cocaine and ketamine in this case if they were to be dealt with separately. Here, cocaine is the more serious and more potent of the two drugs.  If the individual approach was taken, the individual sentences or starting point for the two types of drugs added together would make a total of 9 years and 3 months.  This would far exceed the criminality of the defendant’s crime.  Therefore the combined approach is the fairest approach and appropriate approach here. 

14.Here, it makes sense that I take cocaine as the base for sentencing.  If I were to convert the ketamine into cocaine, it would be equivalent to 6.97 grammes of cocaine.  Therefore the total amount of narcotics to be treated as cocaine would be 19.27 grammes.  This amount, 19.27 grammes, would attract a starting point of 5 years and 8 months.  Defence counsel, Mr Lee, agrees with my calculation.

15.I have taken into account mitigation, the defendant’s plea at the earliest opportunity and everything said on his behalf.  He previously had a clear record and says he has now learnt his lesson.  I will take a starting point of 5 years and 6 months for this charge. He is entitled to a full one-third discount.  When that discount is applied to the starting point of 5 years and 6 months, it is reduced to 3 years and 8 months.  Accordingly, the defendant is sentenced to 3 years and 8 months’ imprisonment.