HKSAR v. Chung Wai Hung

DCCC 639/2020

[2021] HKDC 357

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 639 OF 2020

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of trafficking in dangerous drugs, the particulars of the offence being that the offence was committed on 26 April 2020 in Tai Po.  The narcotic quantities of the drugs involved in the trafficking is 8.09 grammes of ketamine and 1.27 grammes of cocaine.

2.The facts are simple.  They bear out the charge and agreed to by the defendant.  Defendant was originally observed by police officers in an apparent drug-trafficking transaction in an estate in Tai Po.  As a result of that, the defendant was taken back to his own premises for a house search.  The items, the subject of the charge, were found inside the defendant’s bedroom. 

3.Inside a bedside cabinet, there was a plastic box containing 23 transparent resealable plastic bags which contained the ketamine in the charge.  Another plastic bag containing 10 transparent resealable plastic bags was found which contained the cocaine that we find in the charge.  More plastic bags were found together with cash, digital scales, resealable plastic bags, mobile phones with SIM cards and a notebook containing various names and figures. 

4.The defendant exonerated his family immediately on caution, later made a videorecorded interview where he gave further details of his position.  He said he was a drug addict spending 9,000-odd a month on drugs.  He was a construction worker earning $20,000-odd per month.  He admitted the dangerous drugs belonged to him.  At that time, he said he was consuming them, but that is not pursued as mitigation today. 

5.In the case of those factors, the defendant clearly is guilty of the offence charged and I convict him accordingly. 

6.The prosecution also provided antecedents statement in respect of the defendant.  He is now aged or at the time of the compilation of the antecedents statement was aged 25.  The details are given about his family circumstances, but I will elucidate those when I deal with mitigation.  He has convictions in 2014 for possession of a dangerous drug, for which he was placed on probation, and later that probation extended due to a breach of that probation order. 

7.Mitigation put forward is the defendant is 25 years old.  He is married.  He has a three-year-old daughter.  Defendant has worked as a warehouse worker, delivery man and construction site.  He has taken drugs and been placed on probation for that offence.  He met his wife in 2014, married in 2018, daughter born in 2018.  The defendant had employment whilst he was a married man.  The defendant’s father died in 2019.  He suffered reduction in income and then became completely unemployed in recent months, no doubt as a result of the influence of the pandemic on employment in Hong Kong. Defendant also consumed the drugs and was trafficking in the drugs found in his premises. 

8.The defendant is remorseful and upset. He is supported by his wife.  He would, of course, miss the society of his daughter at the time while he is incarcerated.  He understands a sentence of imprisonment will be imposed.  I am asked to consider the position of the child in relation to sentencing.  The defendant is a relatively new father, the child being three years old.  Of course, the daughter should expect to be brought up in a family with her father there and, as a result of sentencing today, at least for a period, that cannot be the case.  And the defendant urges me to consider that in imposing a more lenient sentence so that he can take up his role as breadwinner and as a father to his daughter.  I will, of course, consider that when deciding whether, in my discretion, what the starting point of the sentence should be.

9.The quantities of drug are 8.9 grammes of ketamine and 1.27 grammes of cocaine.  Both quantities of drugs are governed by guideline sentences.  For ketamine, 1 to 10 grammes of the drug will attract a sentence of 2 to 4 years’ imprisonment.  For cocaine, 0 to 9 grammes of the drug will attract a sentence of between 2 to 5 years’ imprisonment.  Here, there is a combination of the drug, which means that other considerations must, of course, be brought into mind by the court. 

10.The court can approach this by combining the drugs for sentence or sentencing on an individual basis in respect of each of the drugs.  Such a calculation, depending on which method is taken, must be subject to the test of absurdity of conversion and at ratio.  In this case I must use the combined approach, combining the drugs, which lead to a quantity of 9.36 grammes of the drugs.  I have to take into account that the predominant quantity of drug in this case by a large amount is the ketamine and adopt that as the baseline drug for calculation of the sentence as opposed to the more potent drug, which would be the cocaine, which would attract a higher baseline sentence. 

11.The court must also consider the fact that there is a combination of drugs, which is an aggravating factor.  In the calculation of the starting point, the court is not necessarily required to adopt a purely arithmetical approach.  And the support for that is the case of HKSAR v Herry Jane Yusuph [2020] HKCA 974. 

12.My approach will be to take the combined approach using the ketamine as it is by far the predominant drug possessed by the defendant for the purpose of trafficking, using ketamine as the baseline drug, taking the figure of 9.36 grammes and adjusting that for the fact that there is a further aggravating factor in the presence of cocaine, which means there is a combination of drugs, which means a wider range of addicts can be serviced.

13.Taking all those factors into account, I am going to take a starting point for sentence at 48 months’ imprisonment, reduce that to 32 months’ imprisonment, having regard to the defendant’s plea of guilty.  That will be the sentence of the court.