HKSAR v. Wong Hung Nin

DCCC 402/2021

[2023] HKDC 210

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 402 OF 2021

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REASONS FOR SENTENCE

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1.Sometime in the evening of 26 December 2020, while the Defendant Wong Hung Nin was driving a rental car in Fuk To Street from Kwun Tong Road, he was ordered to pull over by the police officers. Initially the defendant resisted by continuing to move the vehicle forward but eventually complied with the police order.

2.The police officer found a total of $34,956.70 in cash, an Octopus card, and two mobile phones on the defendant.  In addition, the police also found a zipped bag at the storage compartment on the driver’s door containing a quantity of realable plastic bags with dangerous drugs inside.  In all there were 55 small plastic bags containing a total of 7.09 grammes of cocaine.  There were also 93 plastic bags containing a total of 54.77 grammes of ketamine.  A small digital scale was found in the rear trunk of the defendant’s vehicle. 

3.The prosecution contended that he had those dangerous drugs for trafficking.  He was charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, Laws of Hong Kong.

4.Sentencing for the offence of trafficking in a dangerous drug has been repeatedly considered by the Court of Appeal.  There are very clear guidelines for different types of drugs.  In the present case, the quantity of cocaine falls into the bracket of up to 10 grammes, warranting a starting point of 2 to 5 years.  By mathematical calculation, trafficking in 7.09 grammes of cocaine warrants in a sentence order of 4 years and 1 month.

5.The quantity of ketamine involved in this case falls into the 50 to 300 grammes’ bracket, the sentence of which would range from 6 to 9 years.  By mathematical calculation, the sentence would be about 6 years.

6.In respect of trafficking in different kinds of dangerous drugs, the Court of Appeal has set out different approaches for sentencing.  There are three different tests to cross-check the correctness of sentencing order:

(a)  The absurdity test. This is done by assuming all the drugs were the most potent one. In the present case, the cocaine. 61.86 grammes of cocaine would warrant a sentence of 99 months; and

(b)  The conversion test. This is done by converting all the drugs into cocaine or ketamine. If he was trafficking in 24 grammes of cocaine, the total hypothetical quantity should therefore be 31.09 grammes of cocaine, warranting a sentence of 6 years and 7 months. The second part of this test involves considering trafficking in around 12 grammes of ketamine, would be equivalent to trafficking in 7.09 (grammes)  of cocaine. By converting all this into ketamine, it would mean that the sentence order should be 74 months;

(c)  The ratio test. This involves considering the proportion of each type of dangerous drug. Without going to details, the result by applying this test would be 76 months’ imprisonment.

7.In this case, I see no reason to depart from this practice and the sentencing guideline laid down by the Court of Appeal.  I would adopt 76 months as a starting point.

8.The defendant has pleaded guilty.  He is entitled to a reduction of one-third of the sentence.

9.I have taken into account of the particulars provided in the proof of evidence statement, antecedents and the information submitted by the defence in her written submission: the defendant is 29 years of age.  He has a number of previous convictions, none of which was similar to the present one.  I would not regard those previous convictions as aggravating factors.  On the other hand, that he had previous convictions means that he could not come to this court and ask for this court to exercise additional clemency in his favour.

10.The defendant has a daughter.  He was the sole provider for the family. He lived with his wife and daughter in the mainland, but would commute to Hong Kong to work.  His parents lived in Hong Kong and the defendant would stay with them sometimes.  His father has some health issues and has been taken care by his mother full time.

11.The defendant reached the education of Form 3.  He had been working in logistics both as a driver and a delivery worker.  He committed the present offence for financial gain.  This court is also told that the defendant is very remorseful.

12.In my view none of the above information contains any substantial reason of mitigation.  The only valid mitigation is the fact that he pleaded guilty and, in accordance with the Court of Appeal’s direction, his sentence is therefore reduced from 76 months down to 47 months.