HKSAR v. Chong Yiu Man

DCCC 369/2022

[2023] HKDC 339

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 369 OF 2022

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REASONS FOR SENTENCE

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1.Mr Chong 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 10 January 2022, near the junction of Shing Yip Street and King Yip Street, Kwun Tong, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 2.56 grammes of a solid containing 2.33 grammes of cocaine and 4.90 grammes of a solid containing 4.17 grammes of ketamine.

Facts admitted by Mr Chong

2.On 10 January 2022, at about 3:17 am, a private car stopped at the police roadblock at the junction of Shing Yip Street and King Yip Street, Kwun Tong.  Mr Chong was the driver and there were no passengers on board.  During the course of police enquiry, Mr Chong kept staring at a black clutch bag on the front passenger seat.  A large amount of cash and two mobile phones were placed in the storage compartment on the left of the driver’s seat.

3.The car was searched.  Inside the black clutch bag was found an opened cigarette box whose packaging contained a folded banknote containing traces of a solid containing cocaine.  In the lower storage compartment of the front passenger seat was found one transparent resealable plastic bag containing 0.14 gramme of a solid containing 0.12 gramme of cocaine.

4.Mr Chong himself was searched.  Underneath the left front waistband of his underwear was found one metal box containing 9 transparent resealable plastic bags containing a total of 4.90 grammes of a solid containing 4.17 grammes of ketamine.  Under the right front waistband of his underwear was found another metal box containing 16 transparent resealable plastic bags containing a total of 2.42 grammes of a solid containing 2.21 grammes of cocaine.

5.Mr Chong was arrested for Trafficking in dangerous drugs.  Under caution, he admitted he intended to sell the drugs in order to earn a living and to earn money for legal costs.

6.Two mobile phones, one inserted with one SIM card and the other inserted with two SIM cards, and cash of $9,640 were also found in the storage compartment on the left of the driver’s seat.  Mr Chong had cash of $1,220 on him.  Cash of $35.60 was found in the same black clutch bag.

7.The estimated street value of all the drugs was about $4,918.

8.The car was rented by Mr Chong from a car rental company for a month on 5 January 2022.

9.Mr Chong now admits he possessed all of the drugs for the purpose of unlawful trafficking.

Criminal record

10.Mr Chong has two previous dissimilar convictions recorded after the commission of the present offence.  However, prosecution informed me that the present offence was committed whilst Mr Chong was on police bail for the two offences relating to those previous convictions.

Antecedents

11.Mr Chong is almost 41 years old (39 at the time of the offence), educated to secondary school level.  He was self-employed as a surfing instructor in the summer.  Mr Chong is single and resided in private housing in Tai Wai.

Mitigation

12.Ms Vickie Ling of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chong.  The following is a summary of the mitigation submissions.

13.Prior to the present incident, Mr Chong was of clear record.

14.In February 2022, Mr Chong was convicted of Careless Driving and Drink Driving for which he was sentenced to a short term of imprisonment together with the usual driving restriction orders.

15.Mr Chong worked as a surfing instructor in the Summer.  During the Winter season, he worked as a casual transportation worker and part-time boatman earning on average $13,000 per month when employed.

16.Mr Chong admitted to the offence immediately and pleaded guilty to the charge.  At the material time, Mr Chong was the main breadwinner of the family comprising his parents and his younger brother who suffers from chronic mental illness.  His father (70)  and fiancée are in court to give him support.

17.Mr Chong and his fiancée originally planned to get married the year before.  They have moved out to live together.  Due to the pandemic, their marriage plan was postponed.

18.The offence took place during Winter just on the verge of the outbreak of the 5^th wave of the pandemic when the economy in Hong Kong had been severely affected.  Out of foolishness, Mr Chong committed the current offence.

19.He is now very remorseful and pleads for leniency from the court as far as possible.

20.Ms Ling submitted on behalf of Mr Chong two mitigation letters in Chinese written respectively by Mr Chong himself and his fiancée.  The contents are generally that Mr Chong is remorseful and will not make a mistake again; that he was the primary economic pillar of the family; that he asks for leniency so he may turn over a new leaf and return to his family early and take care of his parents.

21.Ms Ling acknowledged that commission of an offence whilst on bail is an aggravating factor and asked for leniency on behalf of Mr Chong.

22.Ms Ling confirmed that Mr Chong is not relying on self-consumption as a mitigating factor.

23.The dangerous drugs involved here are 2.33 grammes of cocaine and 4.17 grammes of ketamine.

24.According to HKSAR v Lau Tak Ming & Ors [1990] 2 HKLR 370, the sentencing tariff for trafficking under 10 grammes of cocaine is 2 to 5 years of imprisonment.  On a purely mathematical calculation, 2.33 grammes attracts a starting point of around 32.4 months.

25.According to SJ v Hii Siew Cheng [2009] 1 HKLRD 1, the sentencing tariff for trafficking 1-10 grammes of ketamine is 2 to 4 years of imprisonment.  On a purely mathematical calculation, 4.17 grammes attracts a starting point of around 32.45 months.

26.According to HKSAR v Ko Ka Hing [2009] 4 HKLRD 856, in sentencing, the court may consider (i)  the “Individual Approach” by adding together the starting point for each type of drugs: or (ii)  the “Combined Approach” where a starting point is determined for the most serious type of dangerous drugs and then adjusting upwards in the light of the quantity of the less serious drugs.  Where the sentencing brackets for the two types of dangerous drugs are not dissimilar, it is appropriate to adopt the “combined approach”.  The appropriate approach to be adopted is a matter of discretion for the sentencing court, to be exercised in light of the circumstances of the case.  No matter which approach is taken, the paramount consideration is the totality of the overall starting point.

27.In this case, if the “Individual Approach” is adopted, the starting point of sentence would be in the region of 64.8 months.  Ms Ling submitted that the sentencing term calculated from the “Individual Approach” would be excessive and not in the best interest of justice for this case.

28.Ms Ling submitted that the “Combined Approach” is more appropriate in this case.  From the sentencing guidelines and tariff cases, Ms Ling submitted that cocaine is more potent than ketamine; that the starting point for cocaine in this case is about 32.4 months.  Ms Ling noted that the quantity of ketamine in this case is more than that of cocaine; and that the starting point for ketamine is about 32.45 months.

29.Ms Ling then worked through the three cross-checking tests espoused in the case of HKSAR v Chan Yuk Leong, CACC 318/2013, for cross-checking whether the overall starting point was appropriate and she obtained the following results:-

(a)  Absurdity test: 47.4 months for cocaine (and 38.66 months for ketamine);

(b)  Conversion test: 40.812 months for cocaine; and 43.5 months for ketamine; and

(c)  Ratio test: Total 41.74 months.

30.Based on the above test results, Ms Ling submitted that the appropriate starting point of sentence in this case is between 40.8 months and 43.5 months based on Conversion test, and 41.74 months based on Ratio test.

Sentence

31.Trafficking in a dangerous drug is a serious offence.  It is made more serious where there are more than one type of drug involved.  In HKSAR v Chan Yuk Leong (supra), 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 were placed separately though in close proximity to each other.

32.I note the two types of drug here ie cocaine and ketamine are comparable in potency with cocaine being the more potent.  I consider that combined approach would yield a fairer sentence than the individual approach.  I therefore will adopt the combined approach.

33.As regards the three cross-checking tests, the results of my own calculations more or less resemble those worked out by Ms Ling.

34.All things considered, I will adopt an initial starting point of 42 months’ imprisonment.

35.Because of the aggravating factor of commission of the present offence whilst on bail, I will enhance the starting point by 3 months to reach a final starting point of 45 months’ imprisonment.

36.Mr Chong pleaded guilty in good time for which he shall be entitled to the full 1/3 discount in sentence.  Other than that, I cannot discern any other mitigating factors of weight to justify a further reduction in sentence.

(Mr Chong, please stand)

37.The sentence is therefore 30 months’ imprisonment.