HKSAR v. Huang Jun Tao

DCCC 327/2021

[2021] HKDC 1562

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 327 OF 2021

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REASONS FOR SENTENCE

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1.Mr Huang pleaded guilty before me to two charges of Trafficking in (a)  dangerous drug(s), contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.Particulars of Charge 1 are that he, on 9 November 2020, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 1,938.1 grammes of cannabis in herbal form.

3.Particulars of Charge 2 are that he, on 9 November 2020, at Flat C, 8^th Floor, Fung Sing Building, No 235 Hai Tan Street, Sham Shui Po, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 0.35 gramme of a solid containing 0.18 gramme of cocaine and 0.04 gramme of ketamine, 0.02 gramme of a solid containing cocaine, and 10.0 grammes of a solid containing 8.60 grammes of ketamine.

Facts admitted by Mr Huang

4.On 5 November 2020, an inbound air parcel (“the parcel”)  from the US with goods description as speaker was selected for Customs examination at the Customs Examination Hall, G/F, Air Mail Centre, Chek Lap Kok.  The recipient as declared was one Fok with address as a flat in Sheung Shui.  Customs officers examined the parcel and found it contained a speaker and concealed within it 15 bags of what was later confirmed as 1,938.1 grammes of cannabis in herbal form.

5.A controlled delivery of the parcel was conducted on 9 November 2020. Fok received it at the said address.  With the consent of Fok, a further controlled delivery was conducted on the same day at a roadside in Sham Shui Po.  Mr Huang approached Fok and gave him $1,000 and collected the parcel from him.  Mr Huang was immediately arrested.  Under caution, Mr Huang admitted that the parcel contained cannabis which he collected for another for a reward of $3,000.

6.House search was conducted in Mr Huang’s residence nearby (address more particularly specified in Charge 2).  In his bedroom, Customs officers found a paper box containing:-

(a)  One plastic bag containing 0.35 gramme of a solid containing 0.18 gramme of cocaine and 0.04 gramme of ketamine;

(b)  One plastic bag containing 0.02 gramme of a solid containing cocaine; and

(c)  Packaging paraphernalia including one electronic scale and a batch of empty plastic bags.

7.Under caution, Mr Huang stated that the things inside the box were “coke” and they belonged to him for self-consumption.

8.Underneath a mattress inside Mr Huang’s bedroom, Customs officers found a plastic bag containing 10 grammes of a solid containing 8.6 grammes of ketamine. Under further caution, Mr Huang stated that it was “K Tsai” for his self-consumption.

9.Mr Huang now admits he trafficked in all of the dangerous drugs found by Customs officers.

Criminal record

10.Mr Huang has one previous conviction for possession of dangerous drug(s)  in 2019.

Antecedents

11.Mr Huang is aged 24 (23 at the time of the offences), educated to F2 level, was a waiter.  He lived with his parents and girlfriend in Sham Shui Po.

Mitigation

12.Ms Fanny Wong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Huang.  The following is a summary of the mitigation submissions.

13.Before arrest, Mr Huang was a part-time restaurant worker earning on average about $5,000 a month.

14.For his previous record, it was simple possession of cocaine.  Mr Huang started to take ketamine because of boredom and its relatively cheaper price as compared to cocaine.  He subsequently realized ketamine’s harm to his health so he switched back to cocaine whenever he could afford it.

15.Mr Huang was tested negative for cocaine 3 days after arrest while in custody.  However, it is submitted that it was not an indicator that Mr Huang was not a cocaine abuser, the reason being that Mr Huang was not a regular cocaine or ketamine abuser.  It is submitted, based on the prosecution’s expert report (submitted), that a cocaine abuser’s consumption pattern is far from regular, and the average dosage varies greatly too.

16.It is submitted that the two bags containing cocaine in the paper box were in fact:-

(i)  A used package (the one containing only 0.02 gramme of a solid containing cocaine)  which had not been disposed of; and

(ii)  A small package (the one containing 0.18 gramme of cocaine and 0.04 gramme of ketamine)  to be used by Mr Huang.

17.It is also submitted that the said 0.04 gramme of ketamine was the leftover of Mr Huang’s consumption of ketamine.

18.It is submitted that the very small amounts and the packaging of the drugs found in the paper box show that the drugs therein were for Mr Huang’s self-consumption.

19.In respect of the bag containing 8.6 grammes of ketamine found underneath the mattress, Mr Huang’s instruction is that at least half of this bag of ketamine was to feed his own addiction, while the rest would be for “sharing” with friends at cost price just like group purchase, as one could get a better price when buy in bulk.

20.Ms Wong again relied on the same expert report to submit that the daily consumption rate of Hong Kong ketamine users is 2-3 grammes of the drug.

21.Ms Wong categorically informs the court that Mr Huang will not testify in support of his claim for part self-consumption despite the court’s indication that positive evidence is needed to substantiate the claim.

22.Ms Wong submits that since the potency of the drugs in the two charges are so disparate, the individual approach to sentencing is perhaps preferred. Ms Wong submits that the starting point of trafficking in cannabis resin for under 2,000 grammes is a discretion of “up to 16 months”, and a discount of “up to 1 year” could be given in cases involving herbal cannabis (Attorney General v Tuen Shui Ming [1995] 2 HKCLR 129, lines 1-10 of p 136 and lines 34-37 of p 135[1]), save for cases involving large amounts which is not the case here.  It is submitted that in the instant case regarding Charge 1, there are no aggravating factors such as selling it to young people or selling in bars catering for lots of people, retailing on the streets etc and therefore a starting point lower than and farther away from the ceiling of 16 months could be adopted, to be followed by a generous discount within the “up to one year” discretion for the conversion from cannabis resin to herbal cannabis.

23.Alternatively, Ms Wong submits, if herbal cannabis is 4 times weaker than cannabis resin, the benchmark tariff sentence should be “up to 4 months” for under 2,000 grammes of herbal cannabis: HKSAR v Chor Lui [2001] 3 HKLRD 95, paras 12 & 13; HKSAR v Butt Muhammad Gulzar, CACC 205/2019, paras 9, 10, 39; HKSAR v Wong Kwok Hung (transliteration), HCMA 698/2005, paras 3, 4, 6.

24.For the 2^nd charge, it is submitted that the drugs found in the paper box were for Mr Huang’s self-consumption and were in any event negligible in weights; hence one may just focus on the 8.6 grammes of ketamine found under the mattress, which may attract a starting point of about 3 years 8 months (SJ v Hii Siew Cheng [2009] 1 HKLRD 1: 2-4 years imprisonment for over 1 gramme to 10 grammes of ketamine).

25.On aggravating factors, Ms Wong acknowledged that Mr Huang committed the present offences while a probation order against him was still active.

26.Mr Huang pleaded guilty at the earliest opportunity and asked for a 1/3 discount.

27.Ms Wong emphasizes that the two offences took place in close proximity in time and space and asked the court to impose partly concurrent sentences when applying the totality principle.

28.Ms Wong submits three mitigation letters (in Chinese)  written respectively by Mr Huang, his mother and his ex-employer.  The contents are generally that Mr Huang is remorseful, has promised to turn a new leaf and the ex-employer will re-employ him on release.  Mr Huang’s mother and ex-employer asked for a lenient sentence for Mr Huang.

29.In conclusion, Ms Wong submits that Mr Huang is a relatively young man who is genuinely remorseful and she asked for the court’s leniency within the sentencing range so that Mr Huang may serve his sentence and turn over a new leaf as soon as possible.

Sentence

30.I agree that there is insufficient evidence to show Mr Huang’s knowledge of the international element in this case and therefore I will not regard it as an aggravating factor.

31.I agree that as between the two charges, an individual approach to sentencing ought to be adopted.  I will adopt 4 months as the initial starting point for Charge 1.  For the aggravating factor of commission while under probation, I add ½ a month to make a final starting point of 4½ months’ imprisonment.

32.As for Charge 2, I will ignore the small amounts of cocaine and ketamine found inside the paper box for the purpose of sentencing.  For the 8.6 grammes of ketamine, I do not accept, in the absence of evidence from Mr Huang, any amount of it was for his self-consumption.  For this amount of ketamine and with the aggravating factor of commission while under probation in mind, I shall adopt 45 months’ imprisonment as the starting point.

33.Mr Huang pleaded guilty in good time and so is entitled to a 1/3 discount on sentences.  There are no other valid mitigating factors.

34.Despite the fact that the two offences took place in close proximity in time and space, they are of completely different character and should, subject to totality, attract consecutive sentences.

35.On considering the principle of totality, I do not think wholly consecutive sentences will be excessive on Mr Huang.

(Mr Huang, please stand)

36.For Charge 1, the sentence is 3 months’ imprisonment.

37.For Charge 2, the sentence is 30 months’ imprisonment, to be served wholly consecutively.