HKSAR v. Wong Wai Lun

DCCC 338/2022

[2023] HKDC 322

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 338 OF 2022

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REASONS FOR SENTENCE

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1.The defendant is convicted on his own plea of the following charges:-

1^st Charge Trafficking in a dangerous drug

2^nd Charge   Possession of a dangerous drug

3^rd Charge    Driving while disqualified

4^th Charge Using a motor vehicle without third party insurance.

2. The facts admitted by the defendant reveal that the defendant was stopped and searched after alighting from his private car bearing registration number XG 1514 (“the Vehicle”)  at 20:01 hours on 28 August 2021, at the lobby of the Royal Pacific Hotel and Towers (“Hotel”)  in Tsim Sha Tsui. Upon search, a room key to Room 2033 of the Hotel, one car key to the Vehicle, HK$6,000 cash and two mobile phones were found on the defendant.

3. Police conducted a search of Room 2033. 22 transparent resealable plastic bags containing 12.8 grammes of a powder containing 8.39 grammes of ketamine and a number of transparent resealable plastic bags were found inside the safe. A paper bag containing a digital scale was also found. The defendant admitted knowledge and possession of the ketamine under caution.

4.Upon a body search, one transparent resealable plastic bag containing 0.19 grammes of a powder containing 0.14 grammes of ketamine was found on the defendant.

5.The CCTV of the Hotel captured the defendant alighting from the driver seat of the Vehicle. According to the Certificate of Driving Licence Particulars, the defendant was disqualified from driving on 12 March 2021 for a period until 31 December 9999.  The defendant used the Vehicle on a road when there was not in force a policy of insurance or a security in respect of third party risks as required by the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap 272.

Previous convictions

6.The defendant has 2 previous criminal convictions including one count of Trafficking in Dangerous Drugs for which he was sentenced to 4 years’ imprisonment in 2012, and one count of Dangerous Driving for which he was sentenced to a HK$2,000 fine and was disqualified from driving for 6 months in 2021.

7.The defendant has 14 previous traffic convictions.

Personal background and mitigation

8.The defendant was born in Hong Kong and is 27 years of age.  He completed Form 1 education in Hong Kong and worked as a transportation worker and driver, earning about HK$20,000 per month.  The defendant divorced his ex-wife in 2021, but they have since reconciled and plan to raise their four-year-old daughter together. 

9.Mitigation letters written by the defendant, his ex-wife and mother were submitted to the court for consideration.  In his letter, the defendant expressed his remorse.  He explained that at the time of the commission of the offences, his ex-wife was suffering from postpartum depression.  He committed the present offences for quick financial gains.

Sentence

10.In sentencing, I have considered the nature and quantity of the dangerous drugs, the mitigation advanced by Defence counsel, contents of the mitigation letters and the authorities submitted by the defence.

11.The trafficking of dangerous drugs is a very serious offence.  The Court of Appeal laid down the tariffs for trafficking in ketamine namely a term of imprisonment of 2 to 4 years for trafficking 1 to 10 grammes of ketamine (see Secretary for Justice v Hii Siew Cheng[1]). In the instant case, the ketamine involved is 8.39 grammes.  For this quantity I would consider a starting point of 46 months.  The defendant is entitled to one-third deduction for his guilty plea, resulting in a sentence of 31 months’ imprisonment.

12.The defendant was found in possession of 0.14 grammes of ketamine.  I have considered the nature and quantity of the dangerous drug and consider a starting point of 6 months to be appropriate.  After the one-third deduction for his guilty plea, he is sentenced to 4 months’ imprisonment for Charge 2.

13.Driving while disqualified and without third party insurance, are serious offences as injured party may be left without recourse to compensation. 

14.For the offence of driving while disqualified, I adopt a starting point of 3 months’ imprisonment and reduce it to 2 months’ imprisonment after a one-third deduction for his guilty plea.  By virtue of section 44(2)(b)  of the Road Traffic Ordinance, I order the defendant to be disqualified for a period of 3 years.

15.For the 4^th Charge, I adopt a starting point of 4 ½ months’ imprisonment and reduced it to 3 months’ imprisonment after a one-third deduction for his guilty plea.  By virtue of section 4(2)(a)  of the Motor Vehicles Insurance (Third Party Risks)  Ordinance, I order that the defendant be disqualified for a period of 2 years from the date of conviction.

16.I consider the driving offences of the 3^rd and 4^th charge to be distinct from the offences involving dangerous drugs.  I have considered the totality principle. I order that:-

(a)  2 months’ imprisonment term of the 3^rd charge is to run consecutively to the 31 months’ imprisonment term of the 1^st charge, and all other imprisonment sentences are to run concurrently, resulting in a total of 33 months’ imprisonment.

(b)  the disqualification periods imposed in respect of Charges 3 and 4 are to run concurrently resulting in 3 years’ disqualification period.