HKSAR v. Wu Chun Ting

DCCC 81/2021

[2021] HKDC 1426

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 81 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134 (the first charge)  and not guilty to one count of possession of Part I poison, contrary to sections 23(1), 33(1)  and 34 of the Pharmacy and Poisons Ordinance, Cap. 138 (the second charge). Upon the prosecution’s application and as agreed by the defence, the second charge is to be left on court file and not to be proceeded with unless with leave of the court.

Facts

2.At around 9:05 a.m. on 5 October 2020, police officer was on patrol at MTR Wong Tai Sin Station.  As the defendant was walking in a rush while looking down at the ground anxiously, the officer intercepted the defendant.

3.Upon search of the defendant’s rucksack, the following items were found:

(a)  17 transparent resealable plastic bags containing a total of 11.7 grammes of a solid containing 9.97 grammes of ketamine;

(b)  3 transparent resealable plastic bags containing a total of 7.73 grammes of a solid containing 6.10 grammes of ketamine; and

(c)  18 transparent resealable plastic bags containing a total of 2.25 grammes of a solid containing 1.96 grammes of cocaine.

4.One piece of tissue paper wrapping the following items was found in the defendant’s front left trousers pocket:

(a)  1 transparent resealable plastic bag containing 2.44 grammes of a solid containing 2.04 grammes of ketamine; and

(b)  3 transparent resealable plastic bags containing a total of 0.38 gramme of a solid containing 0.35 gramme of cocaine.

5.The defendant was arrested for trafficking in a dangerous drug.  Under caution, the defendant admitted that he carried the drugs for a friend.

6.The defendant had two mobile phones and cash of HK$3,536.20 on him.

7.In a subsequent video-recorded interview, the defendant admitted under caution that:

(a)  his former colleague contacted him and asked whether he would like to make money quick. As he was in debt, he agreed to carry drugs for monetary reward;

(b)  the drugs seized were “Coke” and “K Zai”, i.e. cocaine and ketamine respectively;

(c)  at around 7 a.m. that day, he received a call from an unknown male named “Buffalo” telling him to go to Wong Tai Sin to pick up the drugs. He arrived at Wong Tai Sin and picked up a plastic bag containing the drugs from a flowerbed as instructed. He saw that there were dozens of packets of drugs in the plastic bag and he placed the plastic bag inside his rucksack;

(d)  he then received an order from TELEGRAM and delivered a packet of ketamine and cocaine each to an unknown male near Wong Tai Sin Bus Terminus. The male paid him HK$1,700 for the drugs;

(e)  he intended to go to Jordan for his next delivery via MTR, he wrapped the drugs for that order in a piece of tissue paper but he was stopped by the police at MTR Wong Tai Sin Station;

(f)  he would receive HK$100 for each delivery made and money would be collected from him on a weekly basis; and

(g)  one of the mobile phone seized belonged to his father, he used it to call his friends and the other mobile phone seized belonged to him and he used it to communicate with Buffalo on TELEGRAM.

8.The total estimated street value of the drugs was around HK$18,905.

Mitigation

9.The defendant is aged 23 and has a clear record.  Prior to the arrest, he lived with his father and worked as a venue decorator, earning about HK$13,000 per month.

10.In mitigation, it was submitted that the defendant was persuaded to invest HK$100,000 into his friend’s renovation company.  However, his friend cheated him and the money was not recovered.  As a result, he was in financial difficulties and was lured by another friend to commit the present offence.  The defendant is very remorseful now and is determined to reform himself. 

11.It was also submitted that in this case, given 2 drugs were involved, the combined approach would be the better approach in arriving at the appropriate sentence and that cocaine should be used as the base when determining the appropriate starting point.

12.Finally, it was submitted that given the defendant’s young age, clear record and personal circumstances, a low level of enhancement might be sufficient to reflect the criminality of this case.   

Sentence

13.The drugs involved in the first charge is 2.31 grammes of cocaine and 18.11 grammes of ketamine.  The Court of Appeal has laid down sentencing guidelines for trafficking in the two drugs respectively (see R v Lau Tak Ming [1990] 2 HKLR 370 as modified by HKSAR v Abdallah [2009] 2 HKLRD  437 for guidelines on cocaine and SJ v Hii Sew Cheng [2009] 1 HKLRD 1 for guidelines on ketamine). 

14.In HKSAR v Islam Majharul, CACC 67/2019, the Court of Appeal revisited the “individual” and “combined” approaches used in sentencing when a defendant has been found guilty of trafficking in multiple drugs.  In that case, the Court of Appeal also set out the guidance on the methodology to be used by a sentencing court when adopting the “combined” approach.  According to the methodology set out in that case for calculating the arithmetic starting point, the starting point would be 32 months’ imprisonment for trafficking in 2.31 grammes of cocaine and 52 months’ imprisonment for trafficking in 18.11 grammes of ketamine.

15.The total quantity of the 2 drugs is 20.42 grammes.  If the total quantity were cocaine, the starting point would be 69 months’ imprisonment.  If the total quantity were ketamine, the starting point would be 54 months’ imprisonment. 

16.If the individual approach is adopted in this case, the overall starting point would be 84 months’ imprisonment, which is much higher than the starting point of 69 months’ imprisonment if the total quantity were cocaine. 

17.Therefore, I agree with defence counsel that the combined approach should be adopted in determining the appropriate starting point in this case.

18.Following the methodology of the combined approach as set out in Majharul, the sentence of this case is arrived as set out below.

19.In this case, cocaine and ketamine are involved.  Cocaine is the more serious drug in terms of potency.  Whilst the amount of cocaine represented only 11% of the total drugs, it is still significant in terms of its potency and the sentencing tariff for this quantity.  Therefore, I consider the correct base drug is cocaine.

20.According to the sentencing guidelines, the starting point for trafficking in 2.31 grammes of cocaine is 32 months’ imprisonment.  This would be used as the base. 

21.For trafficking in 18.11 grammes of ketamine, the starting point is 52 months’ imprisonment.  The sentencing guidelines and their related ranges of sentence of cocaine and ketamine are different.  In order to come to a reasonable and realistic increase to the starting point, I have to consider the results of the absurdity test, the conversion test and the ratio test.

22.For the absurdity test, it is 69 months’ imprisonment if the total quantity is cocaine.  The conversion test based on cocaine sentencing guidelines is 60 months’ imprisonment, and on the ketamine sentencing guidelines is 55 months’ imprisonment.  The ratio test is 55 months’ imprisonment.

23.Taking all the above into consideration, I consider it appropriate to increase the starting point of 32 months’ imprisonment by 23 months to 55 months’ imprisonment. 

24.Given the defendant trafficked in 2 types of drugs, the starting point should be enhanced by 1 month to 56 months’ imprisonment.

25.I note the circumstances leading to the commission of the offence, but personal hardship or financial difficulty is generally not a mitigating factor, especially in serious case like this (see HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 at para 73). While the defendant is young, he is not at extreme youth.  Further, credit for clear record is already subsumed in the usual discount for guilty plea and it is well established that no further discount should be given unless there is positive evidence of good character (see Herry Jane Yusuph at para 77). In the circumstances, apart from the defendant’s guilty plea, there is no other mitigating factor justifying further reduction in sentence.  Given the defendant’s guilty plea, the sentence is reduced to 37 months’ imprisonment.