HKSAR v. Wong Sai Man Simon

CACC 251/2024 [2025] HKCA 747

On appeal from [2024] HKDC 1884

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 251 OF 2024

(ON APPEAL FROM DCCC NO 469 OF 2023)

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BETWEEN

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J U D G M E N T

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1.The applicant (D1)  and Chak Siu Lun (D2)  were variously charged with drug offences that took place on 1 and 5 December 2022. On 21 October 2024, the applicant was convicted of his own plea to two charges of trafficking in a dangerous drug, namely 1.34 grammes of a solid containing 1.16 grammes of ketamine (Charge 1), and 60.27 grammes of a solid containing 51.85 grammes of ketamine and 9.08 grammes of a solid containing 6.89 grammes of cocaine (Charge 4)[1] before District Judge G Lam (the judge). On 7 November 2024, he was sentenced to a total of 60 months’ imprisonment.

2.On 25 November 2024, the applicant filed a notice for leave to appeal against sentence, in which he complained that the sentence imposed was too heavy compared to similar cases; that the judge failed to consider that he had no prior similar convictions; and that his mother was highly dependent on his care and support.  

3.The applicant appears in person in the leave application, having had legal aid refused.  On 28 March 2025, he filed a written submission containing four grounds of appeal. He alleged that the judge erred in ruling that the drugs involved were “cocktail drugs” (Ground 1); the judge erred in not ordering the sentences on Charges 1 and 4 to run wholly concurrently, contrary to the approach in HKSAR v Wan Lau Mei[2](Ground 2); the starting points for both charges were manifestly excessive (Ground 3); and the judge wrongly disclosed in open court that he had provided assistance to the authorities (Ground 4).

The summary of facts

4.The facts outlined to the judge and admitted by the applicant can be summarised as follows.[3] On the afternoon of 1 December 2022, the police observed D2 holding a HK$500 banknote and exchanging items with the applicant in a car bearing registration mark YB4621 (the car), which was parked outside The Apex, No 33 Wo Yi Hop Road, Kwai Chung (Location 1).  When intercepted by the police, D2 discarded a tissue that contained two resealable transparent plastic bags containing 1.16 grammes of ketamine[4].  Upon arrest, D2 admitted purchasing the drug for his own consumption.  When Sergeant 8903 (PW3)  tried to subdue the applicant, he drove off to avoid apprehension.  PW3 boarded a minibus to follow him, but eventually lost track of him.  Camera footage of the minibus captured the applicant’s car.  The applicant was later identified as the driver of the car by PW3.  It was confirmed he had rented the car.  These facts formed the basis of Charge 1.

5.On the morning of 5 December 2022, the police found the car parked outside Hart Avenue Court, Nos 19-23 Hart Avenue, Tsim Sha Tsui (Location 2), and intercepted the applicant as he approached it.  The applicant claimed to have rented the car since November 2022, but fled when he was told it was involved in a drug trafficking case.  After a brief chase, the police subdued him and found in his possession a key to the car, two mobile telephones and HK$361 cash.  The police then searched the car and found inside four boxes 91 plastic bags containing a total of 51.85 grammes of ketamine[5] and 58 plastic bags containing a total of 6.89 grammes of cocaine[6], which formed the basis of Charge 4.  The police also found HK$3,370 in cash in his wallet inside the car.

6.Upon arrest, the applicant admitted driving the car to Location 1 to sell dangerous drugs to D2 (Charge 1), and the drugs found in the car were intended for sale to others (Charge 4).  The street value of the ketamine in Charge 1 was estimated at HK$778.54; and the ketamine and cocaine in Charge 4 were estimated at HK$35,016.87 and HK$7,572.32 respectively.

The mitigation

7.At the time of sentencing, the applicant was 44 years of age and resided with his 74-year-old mother.  He had worked as a warehouse supervisor before he was unemployed due to the pandemic.  He had eleven previous convictions for dishonesty related offences.[7]

8.In mitigation, defence counsel submitted that Charges 1 and 4 should be regarded as one occasion of possession of the total amount of drugs and wholly concurrent sentences should be imposed: Wan Lau Mei.  Defence counsel submitted that the combined approach in HKSAR v Islam SM Majharul [8]should apply, arguing that the starting point for the combination of the two types of drugs in both charges, namely 53.01 grammes of ketamine and 6.89 grammes of cocaine, should have been 72 months’ imprisonment based on the three check tests (“absurdity test”: 99 months’ imprisonment for cocaine; “conversion test”: 78 months’ imprisonment for cocaine and 72 months’ imprisonment for ketamine; “ratio test”: 76.5 months’ imprisonment)[9].  Whilst accepting that the applicant’s non-prejudicial statement to the police on 8 February 2024 was of no practical use, counsel sought a discretionary reduction to his sentence for his assistance.[10]

The reasons for sentence

9.As for Charge 1, the judge adopted a starting point of 2 years’ imprisonment for the 1.16 grammes of ketamine, which he reduced by one third to 16 months’ imprisonment for the applicant’s guilty plea. 

10.As for Charge 4, the judge referred to the sentencing principles for trafficking in cocktail drugs[11] and found that the respective starting points for trafficking in 51.85 grammes of ketamine and 6.89 grammes of cocaine were 6 years’ imprisonment and 49 months’ imprisonment, if calculated arithmetically. Adopting the combined approach, he used ketamine as the base drug with a starting point of 6 years’ imprisonment[12] and adjusted it upward by 9 months for the cocaine, arriving at a notional starting point of 81 months’ imprisonment.  After giving one-third discount for his guilty plea, the judge sentenced him to 54 months’ imprisonment.  

11.The judge noted that the applicant could have benefited from the one transaction rule if he had not fled from Location 1, but found that the two charges were separate and distinct.  Applying the totality principle, he considered the appropriate overall sentence for both charges after plea to be 62 months’ imprisonment, which he reduced by 2 months to reflect the applicant’s willingness to assist the police.  He ordered 6 months of Charge 1 to run consecutively to the sentence on Charge 4, resulting in a final sentence of 60 months’ imprisonment.

The appeal against sentence

12.There is no merit in the grounds of appeal that he has advanced against his sentence.  The essence of his complaint is that the Judge erred in ruling that he trafficked in a cocktail of drugs, consisting of ketamine and cocaine and that he should have received concurrent sentences on Charges 1 and 4.  The judge was making the point that multiple drugs were involved.  He took the combined approach in sentencing the applicant using the sentencing guidelines for ketamine as the base drug (the ketamine being larger in quantity than the cocaine), which he enhanced to reflect the quantity of cocaine.  The starting point of the quantity of ketamine alone was 72 months’ imprisonment.  He enhanced the starting point by 9 months for the additional quantity of cocaine.  The notional starting point was 81 months’ imprisonment, which was reduced by one third for the applicant’s guilty plea to 60 months’ imprisonment.

13.The judge apportioned the sentence by imposing 16 months’ imprisonment on Charge 1 and 54 months’ imprisonment on Charge 4, ordering that 6 months of the sentence on Charge 1 run consecutively to the sentence on Charge 4.  The judge treated the two offences as separate and distinct, which was reflected by the consecutive element in the sentence.

14.The judge was correct to treat the two charges as separate and distinct.  In Charge 1, the applicant sold ketamine to D2 in Kwai Chung, while in Charge 4 the applicant was in possession of numerous packages of ketamine and cocaine in Tsim Sha Tsui four days later, which he admitted he intended to sell.  The applicant submits that he was a courier, but he was clearly a seller.  Accordingly, his role and culpability were far more serious than those of a courier.  Several aggravating factors were not taken into account that would have enhanced his sentence, evading arrest in Charge 1 and possessing the drugs to sell on the streets. 

15.The applicant’s other complaints about caring for his mother and the mention in open court of his offer of assistance have no bearing on the sentence he received.

16.The applicant has no cause for complaint for the sentence imposed on him, and there were several aggravating factors that could have resulted in further enhancement to his sentence.

17.The application for leave to appeal against sentence is refused.

18.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Mr Douglas Lau, PP, of Department of Justice, for the respondent

The applicant appeared in person