HKSAR v. Wong Cheuk Hei

DCCC 941/2021

[2023] HKDC 33

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 941 OF 2021

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REASONS FOR SENTENCE

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1.Mr Wong pleaded guilty before me to one charge of Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on 5 August 2021, on a private car bearing registration mark XF1327, near Lamppost No BD1174, Lam Hi Road, Yuen Long, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 11.49 grammes of a solid containing 10.37 grammes of cocaine and 3.62 grammes of a powder containing 3.09 grammes of ketamine.

Facts admitted by Mr Wong

2.On 5 August 2021, at about 2:36 am, a private car was stationary on a road in Yuen Long.  Mr Wong was in the driver’s seat.  The light inside the vehicle was switched on and the window to his right was lowered.  Mr Wong was acting strangely in his seat.

3.A patrolling police constable PW1 approached Mr Wong for enquiry.  Mr Wong suddenly grabbed hold of the steering wheel.  PW1 stopped him.  A search revealed nothing suspicious on Mr Wong.

4.The vehicle was searched and the following items were found:-

(a)  From the upper storage compartment of the driver’s door: one transparent resealable plastic bag (with the number “10” written on the top left corner)  containing 4 transparent plastic bags containing a total of 0.55 gramme of a solid containing 0.50 gramme of cocaine (Exhibit 1);

(b)  From the lower storage compartment of the driver’s door: 6 transparent plastic bags (with the number “10” written on the top left corner)  each containing 10 transparent plastic bags containing a total of 9.27 grammes of a solid containing 8.38 grammes of cocaine (Exhibit 2);

(c)  From the floor under the driver’s seat: one transparent resealable plastic bag containing 1.65 grammes of a solid containing 1.49 grammes of cocaine (Exhibit 3);

(d)  From the storage compartment between the driver’s and the front passenger’s seats: one transparent plastic box containing 0.02 gramme of a solid containing cocaine (Exhibit 4);

(e)  From the floor under the rear right passenger seat: one transparent resealable plastic bag containing 10 transparent plastic bags containing a total of 3.62 grammes of a powder containing 3.09 grammes of ketamine (Exhibit 5); and

(f)  From the opened storage compartment in front of the front passenger seat: two electronic scales.

5.Mr Wong was arrested for Trafficking in dangerous drugs.

6.Under caution, Mr Wong stated that Exhibits 1 to 3 were cocaine he bought for his own consumption; Exhibit 4 was tobacco which was also for his own consumption; Exhibit 5 and the two electronic scales did not belong to him.

7.Mr Wong had two mobile phones and cash of $32,841.20 on him.

8.The total estimated street value of the drugs in this case was about $19,463.

9.Mr Wong now admits that he was in possession of all the drugs for the purpose of unlawful trafficking.

Criminal record

10.Mr Wong has a previous clear record.

Antecedents

11.Mr Wong is aged 35 (34 at the time of the offence), educated to secondary 3 level, was a goods vehicle driver.  Mr Wong is married with a daughter and a son and lived in Tin Shui Wai.

Mitigation

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

13.Mr Wong’s wife is a housewife.  His daughter is aged 4 and his son is 18 months old.  Since 2013, Mr Wong worked for his father’s own delivery service company as a cross-border truck driver.  His monthly salary was $60,000 of which one-third would be given to his mother for household expenses despite he was no longer living with his parents.

14.When Covid hit the Mainland and Hong Kong in 2019, cross-border construction material delivery service was suspended.  Mr Wong therefore idled at home.  With his son’s birth in June 2021 and household expenses rising, he felt an urge to make money to provide for the family.  Blinded by the lure of quick money, he agreed to act as a courier of dangerous drugs.

15.Mr Wong has a clear record.  Sentencing guideline for cocaine is the same as that for heroin.  The tariff for 10 to 50 grammes is 5 to 8 years of imprisonment.  Mr Wong trafficked in 10.37 grammes of cocaine.  Arithmetic calculation yields 60 months and 1 week.  For easier calculation, this is rounded down to 60 months.

16.The guideline sentence for trafficking in 1 to 10 grammes of ketamine is 2 to 4 years of imprisonment.  Mr Wong trafficked in 3.09 grammes of ketamine. The relevant starting point is therefore in the region of 29 months and 2 weeks.

17.Using the individual approach ie by adding the two sentences together, the total would become 89 months and 2 weeks which is obviously too high and unjust to Mr Wong.

18.It was submitted that the combined approach might give a fair and appropriate sentence.  It was submitted that between the two kinds of drug, the quantity of cocaine is the more significant; that cocaine was also the more potent drug.  The court was urged to apply the guideline for cocaine and to adjust the starting point upwards to take into consideration the quantity of ketamine seized by “converting the relevant quantity of ketamine into cocaine”. (As calculated before, 3.09 grammes of ketamine attracts a starting point of around 29 months and 2 weeks.  Upon conversion, trafficking in around 1.56 grammes of cocaine attracts a term of around 29 months and 2 weeks)

19.In HKSAR v Chan Yuk Leong, CACC 318/2013, the Court of Appeal applied 3 cross-check tests to assess whether the extent of upward adjustment of overall starting point for trafficking in more than one kind of dangerous drug is excessive.

20.Applying the three tests in this case will yield the following results:

(a)  Absurdity test: if all the drugs seized in this case were cocaine, the combined weight would be 13.46 grammes – the starting point would then be 63 months of imprisonment;

(b)  Conversion test:

(i)  if all the drugs are converted into ketamine – trafficking in 10.37 grammes of cocaine attracts a starting point of 60 months; the same length of term is the starting point for trafficking in around 30 grammes of ketamine; if all the drugs were ketamine (3.09 grammes + 30 grammes), that would come to 33.09 grammes of ketamine in total; for trafficking in this quantity of ketamine, the starting point would be around 62 months;

(ii)  if all the drugs are converted into cocaine – trafficking in 3.09 grammes of ketamine attracts a starting point of 29 months and 2 weeks; about the same length of term is the starting point for trafficking in 1.56 grammes of cocaine; if all the drugs were cocaine (10.37 grammes + 1.56 grammes), that would come to 11.93 grammes of cocaine in total; for trafficking in this quantity of cocaine, the starting point would be around 61 months and 3 weeks; and

(c)  Ratio test: Assuming the total weight of the two kinds of drug ie 13.46 grammes is a single drug, if ketamine, the sentence would be 63 months; if cocaine, the sentence would be about 63 months:-

(i)  But the actual quantity of ketamine is 3.09 grammes which is 0.23 of the total weight and if converted to sentence terms by the same ratio would give a figure of 14.5 months;

(ii)  But the actual quantity of cocaine is 10.37 grammes which is 0.77 of the total weight and if converted to sentence terms by the same ratio would give a figure of about 48.5 months; and

(iii)  The sum of the two separate results will yield a figure of about 63 months.

21.It was submitted no matter which of the three tests were applied, the appropriate sentence under the combined approach lies in the region of 63 months of imprisonment.

22.Mr Wong indicated he would plead guilty at an early stage and is entitled to the full 1/3 discount.

23.Ms Chan submitted on behalf of Mr Wong three mitigation letters in Chinese (all with English translation)  written respectively by Mr Wong’s mother, his wife and Mr Wong himself.  The contents are generally that Mr Wong is a kind person, is remorseful, is the economic pillar of the family; that he committed the offence because of economic pressure and momentary greed; that he promises not to re-offend and asks for a lenient sentence so he may return early to take up the responsibility of the family.

24.Upon enquiry from the court, Ms Chan confirmed that self-consumption is not being pursued as a point in mitigation.

Sentence

25.Trafficking in a dangerous drug is a serious offence.  It is made more serious where there is more than one type of drug involved.  In Chan Yuk Leong itself, the Court of Appeal re-emphasized the two aggravating factors of which a sentencing court should take note in this type of case, namely (1)  the ability of the trafficker to cater to a wider market; and (2)  the effect on users of combinations of dangerous drugs.  As regards (2), I note that in this case the two types of drugs were not placed together in the same package although they were near each other.

26.The figures helpfully worked out by Ms Chan under the combined approach are more or less correct.  I will accede to the submission that the combined approach be adopted.

27.Everything considered including the fact that this is the first time that Mr Wong got into trouble with the law, I will adopt a starting point of 61.5 months.

28.Mr Wong pleaded guilty in good time and is entitled to the full 1/3 discount.  There are no other mitigating factors of weight that will justify any further reduction in sentence.

(Mr Wong, please stand)

29.The sentence is therefore 41 months’ imprisonment.