HKSAR v. Wong Kwok Fai

HCCC 58/2023

[2023] HKCFI 2431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 58 OF 2023

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant, Wong Kwok-fai, was charged with one count of keeping a divan, contrary to section 35(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Chapter 134, Charge 1; and another count of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Chapter 134, Charge 2.

He pleaded guilty before a magistrate at the committal stage and was committed to the Court of First Instance of the High Court for sentence. This morning he had confirmed his pleas and his admissions of the facts before me.

According to the facts the defendant admitted in court, on the strength of a search warrant, the police officers laid ambush outside 5^th Floor, 109 Tung Choi Street, Mong Kok, Kowloon (the “Premises”). The defendant answered the door and was subdued at the entrance of the Premises. The police gained entry into the Premises afterwards and found nine men and four women inside with packaged dangerous drugs and drug inhaling paraphernalia strewn all over the Premises.

Upon search, 140 plastic bags containing a total of 39.31 grammes of a crystalline solid containing 39.04 grammes of methamphetamine hydrochloride, ‘Ice’, 10 packets containing a total of 2.49 grammes of a mixture containing 2.15 grammes of heroin hydrochloride and three foil packs containing a total of 30 tablets containing 0.39 grammes of midazolam were found from the Premises.

Apart from the dangerous drugs, HK$2,300 cash, a purported price list of the dangerous drugs, notebook and pens, together with drug consumption paraphernalia including, syringes, tinfoil, plastic straws, electric scales, ‘Ice’ bongs and lighters were also found.

The defendant was arrested for the offence of keeping a divan and drug trafficking. Under caution, the defendant said he was responsible for operating a divan at the Premises which offered heroin, ‘Ice’, midazolam and their inhaling equipment to the customers. He worked there on a 24-hour basis at a reward of HK$2,500. He was first introduced to the divan-keeping job by an unknown person in the park.

The cash found from the Premises at the time of the arrest were proceeds of the drug sales. At the time of the arrest, the defendant had one mobile phone and HK$19,930 cash on his person.

The retail price of the dangerous drugs seized in this case amounted to HK$27,208.

Background and Mitigation

According to the antecedents statement, the defendant is now 43. He studied up to Form 3 level. At the time of the offence, the defendant worked as a cook. The defendant is not a person with a clear record, he has one previous conviction of possession of dangerous drugs and was sentenced to probation for 18 months back in 2004. The present case, however, is the first time the defendant has been convicted of the offence of trafficking in dangerous drugs.

In mitigation, Ms Joyce Wu, counsel for the defendant informed the court that the defendant was the sole breadwinner of the family and he would contribute about HK$5,000 to HK$6,000 to his mother every month when he was in employment.

The defendant’s father passed away when he was only 8 years old and he was brought up by his mother who is now aged 74. The defendant was married in 2020, but he has now lost contact with his wife.

The defendant was born and educated in the mainland. Since he moved to Hong Kong at the age of 21, he had various jobs as a chef, construction worker and decoration worker.

Before the pandemic, he was able to earn about HK$13,000 per month, however, at the time of the offences, he has not had any work for months. He has already borrowed about HK$10,000 from his friends to support his family. He could not find a way out and was at the end of his route, as described by Ms Wu.

About two weeks before the offences, when the defendant was queueing up for a free meal from a social enterprise at Tung Chau Street Park at Sham Shui Po, someone approached him and offered him a job of keeping a divan. As he was unable to find a proper job and was very desperate, he finally took the offer in order to earn money to support his family.

Ms Wu emphasised that the defendant had committed the offence due to financial hardship and out of desperation. Ms Wu submitted that the defendant should be given a one-third discount or reduction for his guilty plea in both charges which was tendered at the earliest opportunity.

Finally, she submitted that the two charges were closely related to each other, they concern the same incident and were committed at the same time and in the same location. Considering the proximity of the two charges and the principle of totality of sentence, she urged the court to order the sentence of both charges to run concurrently.

Consideration of the sentence

In sentencing the defendant, I have borne in mind the quantity and the nature of the drugs involved, the background information of the defendant and the mitigation made on behalf of the defendant by Ms Wu.

This case concerns three kinds of dangerous drugs that is ‘Ice’, heroin and midazolam. The midazolam involved was of minute quantity, I will simply ignore the presence of midazolam for the purpose of sentencing.

I shall first deal with Charge 2, trafficking in dangerous drugs. Offences involving dangerous drugs are serious particularly when trafficking of dangerous drugs is involved. Person convicted of indictment of this offence is liable to a fine of HK$5 million and to imprisonment for life. Any defendant who is convicted of these types of offences is expected to be severely punished by the court.

Ms Wu acknowledged in her mitigation that the sentencing guideline for trafficking in ‘Ice’ articulating in the judgment of the Court of Appeal in R v Tam Yi Chun [2014] 3 HKLRD 691, provides a sentencing tariff for sentencing a defendant after trial for unlawfully trafficking in ‘Ice’.

Trafficking in amounts between 10 and 70 grammes calls for a range of sentence of 7 to 11 years’ imprisonment. The quantity of ‘Ice’ seized in this case is 39.04 grammes. In her written submissions, she acknowledge that an arithmetic calculation of the sentence would result in a starting point of approximately 8 years and 11.23 months’ imprisonment.

As for the heroin, under the guidelines laid down in R v Lau Tak Ming [1990] 2 HKLR 370, trafficking in up to 10 grammes of heroin would attract a range of sentence between 2 to 5 years. As the heroin involved in this case is 2.15 grammes, Ms Wu acknowledged that the starting point is approximately 2 years and 7.4 months’ imprisonment.

Finally for midazolam, the quantity involved is 30 tablets and 0.39 grammes only. Citing Attorney General v Chan Chi Man [1987] HKLR 221, Ms Wu submitted that trafficking in a quantity under 500 grammes powder or less than 2,000 tablets has no fixed starting point. And therefore, the court can impose a sentence as he thinks fit.

Ms Wu urged me to adopt the combined approach in sentencing the defendant. She accepted that for these three types of dangerous drugs involved, ‘Ice’ is the most potent drug and the tariff of ‘Ice’ should be used as the base for determining the appropriate starting point.

Ms Wu submitted that using ‘Ice’ as the basis of calculation, the following results would be yielded by applying the three means of cross-checking as stated by the Court of Appeal in the case of HKSAR v Chan Yuk Leong [2014] HKCU 889, and that is the absurdity test, the conversion test and the ratio test.

The application of the absurdity test would result in a starting point of 9 years and 1.26 months. The conversion test, a starting point of 8 years and 11.23 months and that is by simply ignoring the presence of heroin and midazolam due to their relatively small quantity. And the ratio test, a starting point of 8 years and 11.16 months. Ms Angel Yuen, appearing for the prosecution had raised no objection to those calculations.

I agree with Ms Wu that I should adopt the combined approach in the present case. Of the three types of dangerous drugs involved, ‘Ice’ is more potent than cocaine and ketamine and also is of a far more quantity than the other two types of drugs. And therefore, I will use it in the base in the sentencing process.

Since both the conversion test and the ratio test have produced a very similar result, an initial starting point of 8 years and 11 months is appropriate.

In this case, three types of drugs were seized even though separately packed and not in a prepared mixture. I have had regard to the two possible aggravating features here, namely, firstly, the ability of the trafficker to cater to a wider market and secondly, the effect on the users of a combination of the dangerous drugs.

And on this basis, I decide to further enhance the starting point, but because of the relatively small quantity of the heroin and the minute quantity of the midazolam involved, by one month only.

In my judgment, the ultimate starting point I adopt for Charge 2 therefore is 9 years’ imprisonment. The defendant is given one-third reduction for this time for his timely plea which would bring the sentence down to 6 years’ imprisonment.

Apart from the guilty plea, there is no further mitigating factor that can be said on the defendant’s behalf. The family circumstances of the defendant as well as the economic reasons behind his committing the offence have no part to play in the mitigation. As was held in the case of Herry Jane Yusuph [2021] 1 HKLRD 290 at paragraph 59, the Court of Appeal said:

“The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper, that is the person who is delivering, distributing or conveying the drugs in question for a dealer or storing the consignment of drugs on behalf of himself or someone else.”

Consequently, it would not be possible to properly apply the guidelines until the court takes the view of the role and the culpability of the defendant in a particular case.

Now I am mindful of the fact that the role of the defendant in Charge 2, trafficking that is, was far more than a mere courier and a storekeeper. The fact in this case reveal that he was actually keeping and running a divan and involved in the dissemination of the dangerous drugs to the customer inside the Premises.

As a result, it has heightened his culpability and thus, an enhancement in a sentence. Normally, it would call for an increase of the starting point in a sole trafficking charge, but since in this case the defendant has already been charged with an additional offence of keeping a divan, that is Charge 1, to which he had also pleaded guilty. For this reason and for this reason alone, I decide not to increase the starting point on Charge 2 in order to avoid imposing a double penalty on the defendant for his role as a keeper or managing the divan of the drugs.

Now, I turn to Charge 1, keeping a divan. As said, Ms Wu urged the court to order the sentence of both charges to run concurrently on the count of the proximity of the two charges and the principle of totality of the sentence. But in the case of Chong Cho Kit, CACC 363/2005 (unreported, 12 July 2006), the Court of Appeal stated very clearly that trafficking in dangerous drugs and managing a divan are two distinct offences. In that case, although the two offences were committed in the same time and at the same place, the Court of Appeal was of the view that on the facts and on the principle, it is appropriate for separate sentences to be imposed on them.

The Court of Appeal also cited with approval, the following observations made by Pang J in the case HCMA 780/1999, HKSAR v Ho Sai Chak. The Court of Appeal quote:

“Although it can be said that the defendant was arrested in one police operation, however, the act of providing drugs to the others for consumption and that of keeping a divan are different and separate matters. One activity does not necessarily include the other. The appellant was prepared, in addition, to providing drugs, to offer the convenience of a divan to the drug addicts. As such, the two charges cannot be said to be arising out of the same set of facts. The order for sentences to run consecutively cannot be criticised as being wrong in principle. However, one must not lose sight of the totality principle.”

Based on the above, I shall adopt the 2 years’ imprisonment as the starting point for Charge 1 (see HKSAR v Ng Ka Wing Kevin, CACC 563/1999), (unreported, 23 February 2000). After giving the usual one-third discount, the proper sentence on this charge is 16 months’ imprisonment.

Finally because of the totality principle, I order that 6 months of the sentence on Charge 1 to run consecutively to the sentence of Charge 2. Making a total sentence of 6 years and 6 months’ imprisonment for the two charges.

Defendant, please stand up.

For Charge 1, you are to serve a sentence of 16 months’ imprisonment. For Charge 2, you are to serve a sentence of 6 years’ imprisonment. 6 months of the sentence on Charge 1 to run consecutively to the sentence on Charge 2. The total sentence that you are to serve for both charges is therefore, 6 years and 6 months’ imprisonment.