HKSAR v. Wong Chi Chiu

DCCC 321/2023

[2024] HKDC 434

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 321 OF 2023

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REASONS FOR SENTENCE

The defendant faces a "simple possession" charge (Charge 1)  and a "trafficking" charge (Charge 2).

2.He pleaded guilty to Charge 2.  I granted the prosecution's application to leave Charge 1 in the court file; not to be proceeded against the defendant without leave of court.  The dangerous drugs involved in Charge 2 are ketamine and cocaine.

Summary of Facts

3.About 4:35 a.m. on 23 September 2022, police officers approached a private car RB4615 ("the Car")  parked near Lamppost No.VD4685 at Kam Tin Road, Pat Heung, Yuen Long with its head and tail lights on.  They found the defendant and another person (Male 1)  sitting in the front passenger seat and the driver's seat respectively.

4.The Car was searched.  The Police found 2 transparent resealable plastic bags (respectively E1 and E2)  in the cup holder between the front passenger seat and the driver's seat.  E1 was found to contain 17 smaller transparent resealable plastic bags which contained a total of 6.73 grammes of a solid containing 5.65 grammes of ketamine; and E2, 14 smaller transparent resealable plastic bags which contained a total of 2.40 grammes of a solid containing 1.97 grammes of cocaine.

5.Under caution, the defendant said the ketamine and cocaine found belonged to him and they had nothing to do with Male 1.  He hid them inside the cup holder upon police interception and Male 1 was unaware of them.  He purchased the drugs in Yuen Long for about $2,000.

6.In his video recorded interview, the defendant claimed that after buying the drugs in Yuen Long, he asked his friend (i.e. Male 1)  to give him a ride home.  They stopped at the offence location for a chat.  When intercepted by the Police, Male 1 was asked to leave the Car first.  The defendant hid the drugs in the cup holder before alighting from the Car.  All the drugs found belonged to the defendant.

7.The defendant now admits that he had unlawfully trafficked in E1 and E2.

Mitigation & Sentence

8.The defendant is 38 and has 6 conviction records, which included 3 "trafficking" offences and 3 "simple possession" offences.  Defence counsel Mr. Chan informed me that the defendant is single and resides alone.  He was a private chauffer earning $15,000 per month.

9.In mitigation, Mr. Chan submitted that the defendant's 2 younger brothers were bankrupted prior to his arrest.  He had to contribute a total of $5,000 per month to them.  Mr. Chan stressed that the defendant is remorseful and has determined to turn a new leaf.  Mr. Chan confirmed that he is not making any claim of self-consumption as mitigation.

10.Drug abuse has always been a problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment, so that there is a deterrent effect.  Also, time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime. 

11.The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see SJ v Hii Siew Cheng [2009] 1 HKLRD 1)  and cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak Ming & others [1990] 2 HKLR 370).  For up to 10 grammes of ketamine, the sentence ranges from 2 to 4 years' imprisonment.  For up to 10 grammes of cocaine, it ranges from 2 to 5 years' imprisonment.

12.In determining the proper starting point for Charge 2, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v Yip Wai Yin & another CACC 80/2003 and HKSAR v Cheng Yat Ming CACC 455/2006.

13.In the present case, the defendant trafficked in a cocktail of drugs consisting of 5.65 grammes of ketamine and 1.97 grammes of cocaine.  For 5.65 grammes of ketamine, applying a strict arithmetical approach, the appropriate starting point is 3 years' imprisonment.  Similarly, for 1.97 grammes of cocaine, 31 months.  In my view, the "combined approach" would arrive at a realistic and fair sentence. 

14.Although less potent than cocaine, the ketamine found in this case is in a significantly larger quantity.  I decided that the quantity of ketamine shall form the basis of the starting point[1]. Hence, I adopt a starting point of 3 years' imprisonment and adjust it upward by 9 months for the cocaine, arriving at 45 months.  The defendant has 3 "trafficking" convictions.  I will increase the starting point to 48 months for him being a repeated offender.  With the timely guilty plea, the sentence is reduced to 32 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 32 months' imprisonment for Charge 2.