HKSAR v. Wong Ching Wang

HCCC 259/2020

[2021] HKCFI 569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 259 OF 2020

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant pleaded guilty before a magistrate to one charge of trafficking in dangerous drugs, that is Charge 1, and one charge of conspiracy to traffic in dangerous drugs, Charge 2, and was committed to the Court of First Instance for sentence. In sentencing, I have considered the whole circumstances, including in particular the type and quantity of the drugs involved, background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarised as follows. On 12 April 2019, the defendant was intercepted by police officers when he was leaving with a female at a residential building in which he lived. Nothing illegal was found on him. With the keys found on him, a house search was conducted at his home. Inside the flat, the dangerous drugs as stated in Charge 1 were found as well as drug-related paraphernalia such as resealable plastic bags, electronic scales, weights, sieve, inhaling device and containers. Upon arrest, the defendant admitted under caution that all dangerous drugs belonged to him for selling to others.

In a subsequent interview, the defendant admitted the same and added that he was doing so for a man called X who promised to give him a reward of $700 for every 250 grammes of ketamine and ‘Ice’ packaged. He started on a day in January 2019 to live in the flat which was rented for him and drugs began to be distributed to him for packaging on the following day. On the first occasion, he was given around 500 grammes of ketamine, 500 grammes of ‘Ice’ and 48 grammes of cocaine, and he repackaged the drugs into smaller packets for others to pick up.

He helped distribution of drugs every day between January and April 2019, and he had forgotten the quantity involved. He had deposited his rewards into a bank account.

On 9 April, three days prior to his arrest, he received 250 grammes of ketamine. On 10 April, he received 490 grammes of ‘Ice’ and 6 grammes of cocaine. He also said as regards the 290 tablets containing MDMA found, he received a total of 300 tablets one month ago. He had distributed 10 tablets already and received 800 already of the $2,400 promised reward. He had received 500 grammes of herbal cannabis and distributed most of them, leaving around 120 grammes in the flat. He received a reward of $400 for every 250 grammes distributed.

He said the inhaling device belonged to him and explained how he used it. He also said the $7,904.5 found on him and the $5,000 found in the flat were the rewards for disposal of the drugs.

His mobile phone contained a large number of WeChat messages relating to transactions of dangerous drugs between himself and other people. In the phone were also a large number of photographs and video recordings of various quantities of drugs. Urine test of the defendant revealed negative result to all the dangerous drugs.

The defendant is single and 23 years of age. He was educated up to Form 3 and had worked in a salon. He became unemployed in 2018. He did not have any criminal conviction record before.

In mitigation, learned counsel for the defence, Mr Pun, emphasised that the defendant pleaded guilty at the earliest opportunity. He said the defendant committed the offence as he was in need of money and is now very remorseful. He said the chance that the defendant will reoffend is low.

The defence produced a letter from the defendant in which he expressed remorse. He said he committed the offence since he was under great financial pressure when he was planning to get married with his girlfriend who was pregnant. He also said he has been engaging in study for a degree and trade learning to equip himself to turn over a new leaf. A letter from a pastor was also produced in which the pastor pleaded leniency on behalf of the defendant.

The case concerned different types of dangerous drugs, more significantly methamphetamine hydrochloride, commonly known as ‘Ice’, ketamine and cocaine. There were also MDMA, fluorodeschloroketamine and cannabis. Amongst the different types of drugs found, ‘Ice’ was the most potent drug in particular in terms of its degree of harm. The quantity of ‘Ice’ found was also most substantial. There was a total of 500.58 grammes of ‘Ice’. The quantity I mentioned and I am going to mention as regards the drugs found is the quantity of the narcotic content.

The second largest batch of drugs found was ketamine. There was a total of 376.37 grammes. There was a total of just under 100 grammes of fluorodeschloroketamine and ‘Ecstasy’ which attract the same level of sentence as ketamine. There were also 11.54 grammes of cocaine.

Cannabis is the least potent and there was a total of 113.29 grammes and therefore bears little significance for sentencing purpose in this case.

In consideration, I follow the approach as stated by the Court of Appeal in HKSAR v Islam S M Majharul [2020] 3 HKLRD 146. I adopt the combined approach and apply the absurdity test, conversion test and ratio test in deciding the appropriate sentence in the circumstances. In consideration, I bear in mind that trafficking in different types of drugs presented two possible aggravating features of a wider market and the effect on users of combination of dangerous drugs. The impact of these aggravating feature, is substantial in the light of the variety of drugs involved.

As ‘Ice’ was obviously the most prominent drug in the case, I refer to the tariff for ‘Ice’ as the primary consideration in sentence. There was 500 grammes of ‘Ice’. I note that if the conversion test is applied, the sentence should be considered on the basis of about 570 grammes of ‘Ice’.

The Court of Appeal held in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 that in a case of trafficking in ‘Ice’, if the narcotic content is 300 to 600 grammes, a sentence of 15 to 20 years should be considered. A starting point of 18 years and 4 months is appropriate for 500 grammes of ‘Ice’.

Having considered the whole circumstances for Charge 1, the trafficking charge, I adopt an ultimate starting point of 20 years which includes an enhancement of 9 months for the aggravating factor I mentioned.

As far as Charge 2, the conspiracy charge, is concerned, I have had regard to cases such as HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799, HKSAR v Chan Kam Loi, CACC 410/2012, and HKSAR v Chung Yat Ho, CACC 367/2010. If quantity of the drug involved is known, it will provide the court with a ready means of identifying the appropriate starting point, though quantity is not the only fact relevant to the assessment of gravity.

In the present case, the exact quantity is not known but there are some indications from the overall circumstances of the case and what the defendant said under caution. I have analysed the evidence to see whether an estimate can be made which fairly reflects the quantity of drugs which were agreed to be trafficked.

The quantity and types of drug which the defendant said he had received and the quantity and types of drugs actually found as well as the amount of reward the defendant had received, which included an unknown sum deposited into the bank and the cash found, provide for reference in the assessment. The defendant was given a key for access to a flat used to store a substantial quantity of drugs. It was a conspiracy for a continuing exercise, not for a single incident or several incidents. It would have continued if not discovered.

The defendant had engaged in the exercise for three months. He had been distributing drugs every day. He admitted to have conspired in trafficking in several types of drugs, more significantly ‘Ice’ and ketamine. The relevant consideration in relation to multiple drugs is therefore also relevant.

He admitted to have received drugs on three separate occasions. The sum of around $12,000 found was reward he had received. Some reward he had received had been deposited into a bank. He said he was promised a reward of $700 for handling every 250 grammes of ‘Ice’ and ketamine. He also said he received $400 for every 250 grammes of herbal cannabis distributed.

If the admission in relation to the monetary reward is accepted and I note it was not disputed by the defence, the cash found is equivalent to a reward for around 4,200 grammes of ‘Ice’ and ketamine. The cash, of course, also represented reward for handling other types of drugs including cocaine which is equally potent as ‘Ice’ and those like cannabis and MDMA which are relatively minor.

(Discussion re the sum of $800)

Indeed, as Mr Pun submitted, a sum of $800 should be deducted in the calculation exercise as it represented reward for handling of cannabis which has little significance on sentence. On the other hand, a reasonable inference is that the defendant would have spent at least some of the reward over the three months’ period. That a sum had been deposited into the bank cannot be neglected as it is contrary to common sense to think that the sum is insignificant. Available information reveals that the defendant had been provided with slightly more ‘Ice’ than ketamine, but I am prepared to consider the matter on the basis that under the conspiracy the defendant had been handling equal quantity of the two types of drugs.

Based on the above, my preliminary assessment of the scale of the conspiracy is that it covered trafficking in 3,000 grammes of ‘Ice’ and the same quantity of ketamine.

It is my inference that as part of the conspiracy, there were small amounts respectively of each of the other drugs, and for the purpose of assessing the scale of the conspiracy, these other drugs could either be treated as ‘Ice’ or ketamine as appropriate or neglected as its significance on sentence is not significant, such as cannabis.

The indication from the defendant about the quantity of drugs he had handled is understandably stated in gross terms. Sentencing should be considered by reference to the narcotic content only. Roughly speaking, purity of the ‘Ice’ seized was about 99 per cent but that of ketamine was lower. Further, I accept that purity of different batches of dangerous drug would not be the same. For the present purpose, I am prepared to consider sentence with reference to a purity level of 60 per cent. It follows that I will consider sentence on the basis that the defendant conspired to traffic in 1,800 grammes of ‘Ice’ and 1,800 grammes of ketamine.

If the conversion test is applied, the sentence should be considered by reference to about 2,280 grammes of ‘Ice’. Noting that the admission of the defendant is less than precise, the assessment is made mainly by reference to the cash found which represented the rewards still kept by the defendant. The scale of the conspiracy would have included the drugs still remained in the possession of the defendant and eventually found by the police. For sentencing purpose, by applying the conversion test, a notional quantity of around 570 grammes of ‘Ice’ was still in the possession of the defendant.

In my judgment, the ultimate sentence for the conspiracy charge should be decided at least by reference to around 2,850 grammes of ‘Ice’, to be enhanced by reason of the aggravating factor mentioned. I adopt the sentencing approach as stated earlier. I note trafficking in 1,800 grammes of ‘Ice’ calls for a sentence of about 23 years and 7 months.

Having considered the whole circumstances, I will adopt 26 years as the starting point for Charge 2, the conspiracy charge, which includes an enhancement of 15 months.

The defendant pleaded guilty before a magistrate. For this he is entitled to a one-third discount for each charge. I accept that if the defendant had not made a confession, the police would not be aware of the conspiracy. In the circumstances, having regard to HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799, I will give the defendant a further discount of 10 months for Charge 2.

The defendant, please stand up. For the reasons I have mentioned, I sentence you to the following imprisonment terms: Charge 1, 13 years and 4 months; Charge 2, 16½ years.

As the drugs still in your possession had been taken into account in assessing the scale of the conspiracy, having regard to totality, I order the two sentences to run concurrently. Therefore you are to serve a total sentence of 16½ years for the two charges.