HKSAR v. Choy Wing Sing

DCCC 26/2021

[2021] HKDC 1381

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 26 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved are ketamine and cocaine.

Summary of Facts

2.About 4:45 a.m. on 28 July 2020, PC 21832 (PW1)  saw a private car WL4206 ("the Car")  parked near Lamppost No. BF1150, To Wah Road, Yau Ma Tei.  The defendant, who was sitting in the driver's seat, was asked to leave the Car for enquiry.

3.During his body search, the defendant kept looking at the Car.  PW1 then searched the Car in the defendant's presence.  A black drawstring bag which contained the following items was found in the crevice above the steering wheel :-

(i)  1 plastic bag containing 19 plastic bags which contained a total of 13.1 grammes of a solid containing 11.4 grammes of ketamine;

(ii)  1 plastic bag containing 19 plastic bags which contained a total of 14.1 grammes of a solid containing 12.2 grammes of ketamine;

(iii)  1 plastic bag containing 21 plastic bags which contained a total of 2.69 grammes of a solid containing 1.05 grammes of cocaine; and

(iv)  1 plastic bag containing 20 plastic bags which contained a total of 3.26 grammes of a solid containing 2.63 grammes of cocaine.

4.The defendant was arrested for "Trafficking in dangerous drugs".  Under caution, he admitted that he was responsible for distributing the bag of drugs in areas in Kowloon with the pay of $1,000 per day.

5.The registered owner of the Car, Mr. Ho, confirmed that he lent the Car to the defendant around 7:00 p.m. on 27 July 2020 in Sheung Tak Estate, Tseung Kwan O.  Mr. Ho claimed that there were no dangerous drugs or illegal items in the Car when he handed it over to the defendant.

Mitigation & Sentence

6.The defendant is 32 and has a clear record.  Defence counsel Mr. Lam informed me that the defendant is married with a 5-year-old daughter.  He is a casual construction worker and a part-time driver, earning about $30,000 per month.  Letters written by the defendant and his wife were placed before me; their contents are duly noted. 

7.In mitigation, Mr. Lam submitted that the pandemic sharply reduced the defendant's opportunities for work, thereby causing him financial pressure.  He found a courier job on the internet, but did not know the nature of the items to be delivered until the last minute.  Since he needed money to support his family, he foolishly agreed to deliver drugs for $1,000.  Mr. Lam asked for leniency by stressing the defendant's clear record and guilty plea. 

8.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime.  Drug abuse has always been a problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller or courier)  and that drug traffickers would most certainly be punished by long-term imprisonment, so that there is a deterrent effect.

9.The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see  SJ v HII Siew Cheng [2009] 1 HKLRD 1)  and cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370).  For 10 to 50 grammes of ketamine, the sentence ranges from 4 to 6 years' imprisonment.  For up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years' imprisonment.

10.In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v Yip Wai-yin & another CACC 80/2003 and HKSAR v Cheng Yat-ming CACC 455/2006.

11.In the present case, the defendant trafficked in a cocktail of drugs consisting of 23.6 grammes of ketamine and 3.68 grammes of cocaine.  For 23.6 grammes of ketamine, applying a strict arithmetical approach, the appropriate starting point is 4 years and 8 months.  For 3.68 grammes of cocaine, applying a strict arithmetical approach, the appropriate starting point is 3 years and 1 month.  Mr. Lam has rightly suggested that the "combined approach" would arrive at a realistic and fair sentence. 

12.Although less potent than cocaine, the ketamine found in this case is in a significantly larger quantity.  I decided that the quantity of ketamine shall form the basis of the starting point[1].  Hence, I adopt a starting point of 56 months' imprisonment and adjust it upward by 10 months for the cocaine, arriving at 66 months.  With his timely guilty plea, the sentence is reduced to 44 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 44 months' imprisonment.