HKSAR v. Tang Kwong Wai

DCCC 152/2022

[2023] HKDC 673

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 152 OF 2022

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REASONS FOR SENTENCE

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The plea

1.The D plea guilty to a charge of trafficking dangerous drugs, the total narcotic contents are: -

(a)  10.23 grammes of cocaine

(b)  0.41 grammes of ketamine

(c)  0.81 grammes of MDMA

Facts of the Case

2.On 28 February 2021 at around 0055 hours, the police stopped and searched the car which was driven by the D at the material time.

3.Apart from the drugs (as stated in the charge sheet)  being found at various parts of the car, cash were also found: -

(a)  HK$10,640 and 2 mobile phones from a cross-body bag on the floor of the driver seat

(b)  Cash of HK$60,320

(c)  Cash of HK$591.6 and two mobile phones

(d)  cash in (b)  and (c)  were found in different parts of the car.

4.At the time of the arrest, D possessed cash of HK$6,027, USD$1 and one mobile phone.

5.The estimated retail price of the drugs was HK$18,098.

Antecedent / Mitigation

6.The defendant has a clear record.

7.The defendant is 48 years old, married with a 3 years old daughter. The defendant took 2 jobs as a driver to make a monthly earning of $50,000 to support his family including his 71 years old mother.

8.The defendant took drugs to relieve his wrist pain as he was injured in an industrial accident in 2020.

9.In respect of the current incident, he delivered the drugs to his friend without any reward.

10.The $60,000 cash in the car was the double paid from his employer in Chinese New year.

11.In view of his plea and his remorse, the defence asked this court to impose a lenient sentence.

12.His wife apart from providing a mitigating letter, she is also in court today to support the defendant.

Sentence

13.When passing sentence on the defendant, I bear in mind of all the mitigating factors which has been advanced on behalf of the defendant.

14.During mitigation, I expressed my view that I do not accept that $60,000 found in the car was from his employer as his arrest took place two weeks after the Chinese New Year. It is against the tradition for any Chinese employer to provide double paid after Chinese New Year.

15.I certainly do not believe that the defendant would deliver drugs to his friend without rewards. Trafficking in dangerous drugs is a high risk activity. Custodial sentence is inevitable. The defendant has a young family at home. His wife stated that he loves their daughter dearly. He took up 2 jobs to provide sufficient financial supports to his family, why would he embark on this high risk journey at about 1 am in the early morning without reward? He should be at home with his family, bearing in mind that he also had 5 mobile phones in the car and one phone on his person to provide contacts with others and there were a lot of cash found in the car.

16.Nevertheless, I also have reference to the 7 steps approached as stated in the case of HKSAR v Islam S M Majharul [2020] 3 HKLRD 146.

17.In the present case, the base drug is clearly cocaine, the sentencing guideline for trafficking of cocaine is The Queen v Lau Tak Ming & others [1990] 2 HKLR 370 and also in HKSAR v Abdallah [2009] 2 HKLRD 437.

18.The 10.23g of narcotic content of cocaine falls into the sentencing bracket of 5 to 8 years. That attracts a sentence of 5 years.

19.As to 0.41g of ketamine and 0.81g of MDMA, the sentencing guideline can be found in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.

20.As individual approach will result in a harsh and heavier sentence. It is appropriate to take a combine approach in sentencing in the present case.

21.Taking cocaine as the base drug, both the defence and the prosecution agreed the following calculation: -

(a)  In respect of the conversion test, the amount of the ketamine was 0.41g, while MDMA was 0.81g, as each drug was below one gram, the sentencing guideline said that it is within the discretion of the court. As such, it was difficult to convert Ketamine and MDMA into cocaine.

(b)  While the starting point for absurdity test and ratio test are as follow: -

Absurdity test	61.3 months
Ratio test	60 months

22.In view of above calculation, I take 5 years as the starting point, enhance the sentence by 3 months to take into account of the quantity of ketamine and MDMA, it arrives at a sentence of 5 years 3 months.

23.There is also an aggravating factor that there are more than one types of drugs to provide for a wider market, the sentence is enhanced by another 3 months.

24.The total sentence is 5 years 6 months, given 1/3 discount, the sentence is now reducing to 44 months, that is 3 years 8 months’ imprisonment.