HKSAR v. Wong Yu Ting and Another

DCCC 2/2021

[2022] HKDC 1344

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 2 OF 2021

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REASONS FOR SENTENCE

1.D1 faces a charge of "Resisting police officers in the execution of their duties" (Charge 1), a charge of "Possession of a dangerous drug" (Charge 2), and a charge of "Assisting offender" (Charge 4). He pleaded guilty to Charges 1 and 2, and was acquitted of Charge 4 after trial.

2.D2 pleaded guilty to a charge of "Trafficking in dangerous drugs" (Charge 3).

Summary of Facts

3.About 5:15 p.m. on 24 July 2020, PC 1791 (PW1)  and PC 5979 (PW2)  saw a male (later confirmed to be D1)  walking out of an elevator at the Ground Floor lobby of The Zutten (a residential building situated at Ma Tau Kok Road, To Kwa Wan).

4.PWs 1 and 2 intercepted D1 outside The Zutten and revealed their police identity.  D1 was unwilling to comply with their commands.  CCTV footage showed that D1 did not appear to have struggled actively but simply refused to go with the police officers.  It took at least 4 male police officers about 3 minutes to put D1 under control and then move him to the rear staircase on the Ground Floor of The Zutten.  This is Charge 1.

5.D1 was searched at rear staircase by PW1.  A transparent resealable plastic bag wrapped in a piece of tissue was found inside D1's underpants.  The plastic bag was found to contain 0.26 gramme of a solid containing 0.24 gramme of cocaine.  D1 was arrested for "simple possession" at the rear staircase.  This is Charge 2.

Charge 3

6.About 5:25 p.m. on the same day, PWs 1 and 2, PC 16730 (PW3)  and their teammates escorted D1 to the 17^th Floor of The Zutten by taking the lift.  PW2 pressed the doorbell of Flat J ("the Flat").  Within 5 to 10 seconds, a female (later confirmed to be D2)  opened the door and the police officers entered the Flat.

7.The Flat, which is a one-bedroom apartment with an open kitchen and a bathroom, was searched.  PW3 found the following items on a table in the living room :-

(i)  2 transparent resealable plastic bags which contained a total of 41.9 grammes of a solid containing 35.9 grammes of ketamine (collectively E2);

(ii)  a transparent resealable plastic bag containing (a)  5 smaller transparent resealable plastic bags which contained a total of 1.98 grammes of a solid containing 1.71 grammes of ketamine (collectively E3); and (b)  2 smaller transparent resealable plastic bags which contained a total of 0.98 gramme of a solid containing 0.58 gramme of ketamine and 0.27 gramme of fluorodeschloroketamine (collectively E4);

(iii)  a transparent resealable plastic bag containing 94 smaller transparent resealable plastic bags; and

(iv)  an electronic scale.

8.PW3 also found the following items inside the drawer of the same table :-

(i)  a transparent resealable plastic bag which contained 16.2 grammes of a solid containing 13.8 grammes of cocaine (collectively E5);

(ii)  a transparent resealable plastic bag which contained 2.21 grammes of a solid containing 1.92 grammes of ketamine (collectively E6);

(iii)  a transparent resealable plastic bag containing 14 smaller transparent resealable plastic bags which contained a total of 1.96 grammes of a solid containing 1.78 grammes of cocaine (collectively E7); and

(iv)  an electronic scale.

Police Investigation

9.Two palm prints which belonged to D2 were found on the balcony glass door of the Flat.

10.D2 signed a tenancy agreement in respect of the Flat as tenant for the period from 1 March 2020 to 28 February 2022.

11.The estimated street value of E5 and E7 was $64,014 in total.  The estimated street value of E2, E3, E4 and E6 was $21,934 in total.

12.D2 now admits that she possessed E2 to E7 for the purpose of unlawful trafficking.

Mitigation

D1

13.He is 31 and has 1 conviction record which involved 3 traffic offences.  His counsel Ms. Ko informed me that D1 resides with his mother and younger brother.  D1's mother was diagnosed with breast cancer in 2019.  D1 is now a warehouse worker earning $15,000 per month.

14.In mitigation, Ms. Ko submitted that D1's behviour in Charge 1 was not the most serious of its kind. His refusal to cooperate lasted for about 3 minutes and no police officer was injured.  According to the evidence of PC 16730, D1 was cooperative during the body search at the rear staircase.  Regarding Charge 2, Ms. Ko explained that D1 got into drugs when his mother became ill.  He has managed to stay away from drugs since he was granted bail in this case.  He was remanded in jail custody for almost 4 months before bail pending trial was granted. 

D2

15.She is 24 and has a clear record.  Her counsel Mr. Cheng informed me that after completing F.3 in Hong Kong, D2 went to study in England.  She completed her A-levels in 2016.  After 1 year of tertiary education, she returned to Hong Kong in 2017 and started working.  At the time of arrest, D2 was an office assistant in an automobile company earning $20,000 per month.  Her employer speaks highly of her. 

16.In mitigation, Mr. Cheng submitted that in late 2018, D2 moved out of her parents' home and rented a flat in Yau Ma Tei to live alone because she was keeping a dog.  In mid-2019, D2 met D1 in a social gathering and began their relationship.  In early 2020, D1 moved into D2's Yau Ma Tei flat.  D2 soon discovered D1's drug habit.  They had heated quarrels.  D1 apologized and D2 forgave him out of love.  In March 2020, D1 and D2 moved to The Zutten.  Shortly afterwards, D2 found drugs at the Flat again.  As a result, more quarrels and history repeated itself.  Mr. Cheng explained that D2's fault was she condoned D1's drug activities because D1 said he needed to raise money to treat his mother's cancer.  She pleaded guilty on the basis of a "storekeeper".  Mr. Cheng stressed that D2 started her rehabilitation plan since her remand in jail custody in 2020.  She has completed a number of online courses and some are still ongoing. 

Sentence

D2

17.I will deal with her first.  Drug abuse has been a long-term 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, courier or storekeeper)  and that drug traffickers would most certainly be punished by long-term imprisonment, so that there is a deterrent effect.

18.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 10 to 50 grammes of cocaine, the sentence ranges from 5 to 8 years' imprisonment.

19.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.

20.In the present case, D2 trafficked in a cocktail of drugs consisting of 40.11 grammes of ketamine and 15.58 grammes of cocaine.  For the purpose of sentencing, I am prepared to ignore the 0.27 gramme of fluorodeschloroketamine.  For 40.11 grammes of ketamine, applying a strict arithmetical approach, the appropriate starting point is 5.5 years' imprisonment.  For 15.58 grammes of cocaine, applying a strict arithmetical approach, the appropriate starting point is 5 years and 5 months' imprisonment.  Mr. Cheng has rightly suggested that the "combined approach" would arrive at a realistic and fair sentence. 

21.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 66 months' imprisonment and adjust it upward by 12 months for the cocaine, arriving at 78 months.  With the timely guilty plea, the sentence is reduced to 52 months.  I am inclined to believe that D2 played no part in D1's drug activities except knowingly allowing him to store the drugs in the Flat[2]. I will grant her an additional discount of 4 months to reflect her very passive role, reducing the sentence to 48 months.  I sentence D2 to 48 months' imprisonment for Charge 3.

D1

22.He should consider himself lucky that the prosecution has amended Charge 3 by removing him from the charge. I should not probe into the reasons behind or speculate on why such a decision was made.  In my view, D1 knows better than anyone as to who owned the drugs found in the Flat and who was trafficking in them.  I shall leave it to D1 and D2 to sort out for themselves who failed whom in this case.

23.The CCTV footage clearly depicted D1's demeanour when intercepted by multiple police officers.  I accept that he did not actively struggle.  He simply refused to go with the police officers.  For Charge 1, I adopt a starting point of 3 weeks' imprisonment[3].  With the timely guilty plea, I sentence D1 to 2 weeks' imprisonment for this charge.

24.D1 was found in possession of 1 packet of 0.24 gramme of cocaine.  DATC Report indicated that he is not drug dependent.  Although he is a fresh offender of drug-related offences, based on the background of this case as well as the nature of the drug involved, an immediate custodial sentence is required.  I adopt a starting point of 6 months' imprisonment for Charge 2.  With the timely guilty plea, I sentence D1 to 4 months' imprisonment for this charge.

25.Having considered the totality principle, I order the sentences for Charges 1 and 2 to run concurrently.  Hence, the total prison term for D1 is 4 months.