HKSAR v. Wong Chun Yin

DCCC 770/2022

[2023] HKDC 1189

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 770 OF 2022

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 2 charges: -

(a)  Possession of a solid containing 0.89 grammes of ketamine;

(b)  Trafficking in dangerous drugs: a solid containing 11.88 grammes of cocaine.

Summary of facts

2.At around 5:50 pm on 4 April 2022, the police saw the defendant and his friend (“Lam”), came out from a unit  of Yan Tat House in Sau Mau Ping. They were intercepted at the lift lobby on the same floor.

3.Upon search, bags containing a solid which contained 0.89g of ketamine (“E1”)  and HK$3,000 were found in a card holder in the left front pocket of the defendant’s pants.  A mobile phone and 2 keys were also found on the defendant.

4.The defendant was arrested for “possession of a dangerous drug”.  Under caution, the defendant admitted that the 3 bags of “K Chai” were for his self-consumption.

5.During a house search, a total of 60 small resealable plastic bags containing a total narcotic content of 11.88g of cocaine were found.

6.The defendant was arrested for “trafficking in a dangerous drug”.  The defendant admitted that the “Coke” belonged to him.  It had nothing to do with Lam.

7.The estimated market price of: -

(a)  ketamine is HK$514;

(b)  cocaine powder is about HK$13,000;

(c)  crack cocaine is about HK$24,000.

Criminal record

8.The defendant has 2 previous records: -

(a)  Criminal damage in 2017;

(b)  Possession of dangerous drugs in February 2022

(15 months’ of probation order).

Background and mitigating

9.The defendant is 21 years old.  His parents divorced when he was very young.  The defendant stopping schooling at Form 2 and started to take up part-time job earning about $8,000 per month.  He took ketamine to relieve his grief and stress for the passing of his sister in 2020.

10.In mitigation, the defence said that for the purpose of sentencing, only the amount of cocaine should be considered and to ignore the small amount of quantity of ketamine.

11.As the D is facing two charges, I inform the defence that I need to pass sentence on each and individual charge. After clarification, the defence said that both sentences should be run concurrently.

Sentence

12.In the present case, there is an aggravating factor. The D committed the two offences two months after the Court imposed a 15 months’ probation order for a charge of possession of dangerous drugs. As such, I will enhance the starting point in each charge by 3 months.

Charge 1

13.The D has 3 bags of ketamine with him at the time of arrest. His urine test result was ketamine negative. That means the 3 bags of ketamine might go into the market and into the wrong hands. The defence said that he could not argue against the latent risk factor in charge 1.

14.As such, I adopt a starting point of 9 months’ imprisonment, enhance by 3 months for the latent risk factor and a further 3 months for the aggravating factor. It arrives at 15 months, given ¹/₃ discount, the sentence is now reduced to 10 months’ imprisonment.

Charge 2

15.As to Charge 2, the sentencing guideline for cocaine trafficking can be found in R v Lau Tak Ming [1990] 2 HKLRD 370 and AG v Rojas [1994] 1 HKC 342 that between 10 grammes and 50 grammes, the sentencing bracket is 5 to 8 years.

16.For a quantity of 11.88 g of cocaine, it attracts a sentence of 5 years 2 months.  I enhance the starting point by 3 months for the aggravating factor, it arrives at 5 years 5 months. It becomes 43.3 months after ¹/₃ discount.  I round down to 43 months.  The sentence is 3 years 7 months.

Totality of Sentence

17.To this end, I also order sentences of Charge 1 and 2 to run concurrently.  The defendant is sentenced to 3 years and 7 months’ imprisonment.