HKSAR v. Wong Chun Sing

DCCC 75/2021

[2021] HKDC 1075

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 75 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of trafficking a dangerous drugs, namely 6.03 grammes of a solid containing 4.62 grammes of cocine and 8.04 grammes of a solid containing 6.75 grammes of ketamine.

SUMMARY OF FACTS: -

2.On 17 June 2020, at about 0054 hours, the police stopped and searched the car of which the defendant was driven at the material time.

3.A body search was conducted and the following items were found: -

(a)  In his cross bag: one re-sealable transparent plastic bag containing 0.14 grammes of cocaine and cash of HK$14,134 and

(b)  In the left pocket of his trousers: two Samsung phones.

4.From the vehicle, further items were found: -

(c)  At the leg room under the front passenger seat: inside a metal tin, it contained 31 small re-sealable transparent plastic bags containing 4.48 grammes of cocaine and 21 plastic bags containing 6.75 grammes of ketamine.

(d)  Two more LG phones were found in the storage compartment under the driver’s seat.

5.The estimate street value of the dangerous drugs was about HK$12,528 in total.

CRIMINAL RECORD

6.He had been sentenced to a probation order for 15 months for a conviction of possession of dangerous drugs in 2013.  Subsequently, he committed the breach of that probation order and was sentenced to 2 months impressment.

MITIGATION

7.The defendant is now aged 30.  His last job was a vehicle salesman, making a monthly earning of around $15,000 to $20,000.  His wife lives in China.  He has a daughter aged 7.

8.The defendant incurred a substantial court fines which amounted to $63,260.  He lent his car to his friend and the end result was a large number of parking tickets.

9.At the material time, he sent those dangerous drugs to Yuen Long for a financial gain of $2,000.  The defence said that he acted as a courier.

10.Mr Lee for the defence also said that the packet found in his cross bag and 4 packets out of the 31 packets of cocaine were for his self-consumption.

SENTENCE

11.It is a mitigating factor if the defence can establish that the items claimed were for his self-consumption.

12.However, the defence rightly pointed out that there was no admission made by the defendant.  When the defendant was arrested, the impairment test showed that the defendant was not under the influence of drugs.

13.As stated in the judgment of HKSAR v Cheung Wai Man CACC 258/2017, the Court of Appeal said that “mere assertions by counsel from the bar table, unless agreed or not in dispute or contention, will generally not suffice…… it is therefore important for a defendant in making a claim for self – consumption to put before the court credible and reliable information and material in an acceptable form”.

14.In the present circumstance, the defendant elected not to give evidence nor called any witness to support his claim of self-consumption.

15.From the available evidence before me, namely, the urine test which was taken on 19 June 2020 at 9:44 am and it was during his remand, the test result was ice positive, but cocaine negative.

16.The defence’s claim that one bag of cocaine from his cross bag and 4 bags of cocaine from his vehicle were for his future consumption was clearly a “mere assertion from the bar table”.  There is simply no credible and reliable information and material before me to substantiate such a claim.

17.The fallback position of the defence was that at least one bag of cocaine from his cross bag was for his own use, that amount to 15.6% of the total drug, the defence relied on the case of Choi Chun Wo [2018] 5 HKLRD 717 which was the case I previously dealt with.

18.However, the fact of Choi Chun Wo was different from the present case.  In Choi’s case, the appellant mainly lived in China, amongst all the drugs he carried through the boarder, there was a bag of drugs in his possession which had been opened.

19.As I have made clear to the defence that I would not accept “mere assertion from the bar table”, coupled with the fact that the urine test for cocaine is negative, I rejected the defence’s claim entirely that the drugs in his cross bag was for his self-consumption.

20.As I found that none of the dangerous drugs was for his self-consumption, I do not need to consider to exercise any discretion in his favor to reduce any part of the sentence he is facing at the end of the day.

21.I now come to consider the sentencing principle.  Since the dangerous drugs involved were cocaine and ketamine, the sentencing guideline in R v Lau Tak Ming & others (1990)  2 HKLRD 370, should apply, namely up to 10 grammes, it falls into sentencing bracket of 2 to 5 years.

22.As to ketamine, the case of Hii Siew Cheng (2009)  1 HKLRD 1, should apply, from 1 gram to 10 grammes, the sentencing bracket is 2 to 4 years.

23.Since the individual approach will result in an oppressive sentence, the combine approach will be adopted for present case.

24.As the defence agreed that cocaine is more potent than ketamine, the calculation of the conversion test should take cocaine as the base, not ketamine.

25.The result of the calculations for the 3 tests are: -

(a)  The absurdity test is 61 months;

(b)  The conversion test is 56 months;

(c)  The ration test is 54 months.

26.As this court has went through the 6 steps approach with the defence according to the case of HKSAR v Henry Yusuph (2021)  1 HKLRD 290, it is accepted that there is an aggravator in this present case as the defendant had in his possession of 2 types of dangerous drugs for trafficking and that should attract an additional 3 months of enhancement upon the “notional sentence after trial”.

27.The remaining factor for this court to consider is whether the defendant was a courier?  The defendant did not say anything in the record of interview and that was his right.  The defence said that he drove his car to deliver the drugs.  The reward was $2,000.

28.In his bag, there was $14,134 which the defence said that was his savings.

29.I have great doubt about his financial ability to save such a sum when: -

(a)  He earned only $15,000 to $20,000 as a salesman. He has a young family to take responsibility. The high living costs in Hong Kong can easily wipe out all his monthly earnings.

(b)  He has a debt of $63,260 that he needs to pay by a monthly installment of around $1,030 to the court.

I tend to believe that this sum of $14,134 was drug related money.

30.Since there was no other evidence from the summary of facts, I have to accept that the defendant played a role as a courier in a broad sense.

31.To this end, I take the ratio test as a starting point, that is 4 years 6 months and I further enhanced by 3 months as previously discussed.  The total sentence is 4 years 9 months, reduced to 3 years 2 months after 1/3 discount.

Sentence

32.I order the defendant to serve a sentence of 3 years and 2 months.