HKSAR v. Wong Wai Hong

DCCC 236/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 236 OF 2013

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved are ketamine and cocaine.

Summary of Facts

2.About 7:00 p.m. on 5 December 2012, PCs 5720 and 34730 stopped the defendant for enquiry at Staircase No.1 between the 2^nd and 3^rd Floors of Ping Hay House, Tai Ping Estate, Sheung Shui.  Upon search, nothing illegal was found on the defendant.  He indicated that he was living in Room 301 of the same building.

3.The defendant took the Police to his flat. He opened the doors using his keys and let the Police in.  A house search was conducted.

4.In the defendant's room, the Police found, inter alia, a white Samsung phone box in a bedside cabinet of the lower bunk of a bunk bed.  Inside that phone box, the following items were found :-

(i) 4 transparent re-sealable plastic bags which contained a total of 12.84 grammes of a powder containing 10.63 grammes of ketamine;

(ii) 1 transparent re-sealable plastic bag containing 35 transparent re-sealable plastic bags which contained a total of 10.28 grammes of a solid containing 6.36 grammes of cocaine;

(iii) 1 electronic scale;

(iv) 1 transparent re-sealable plastic bag which contained many transparent re-sealable plastic bags; and

(v) $300 cash.

5.Under caution, the defendant admitted that the substances in the 4 transparent re-sealable plastic bags are ketamine; and those in the 35 transparent re-sealable plastic bags are cocaine.  All the items contained in the white Samsung phone box belong to him.  Half of the drugs were intended for self-consumption, and the other half for selling to friends to earn some money to buy drugs.

6.Fingerprints of the defendant's right thumb and left middle finger were found on the white Samsung phone box.

Mitigation & Sentence

7.The defendant is now 22 and has 2 conviction records, both of which are drug-related.  He is single and resides with his family in a public housing unit.  He was a decoration worker at the time of offence.  Defence counsel Mr. LAM informed this court that the defendant's relationship with his family members is good.  He made full and frank admissions upon arrest and was willing to bring the Police to his home and then let them in.  Mr. LAM submitted that this case is not a large-scale trafficking operation.  The defendant has decided to plead guilty to the charge knowing full well of the consequences of doing so.

8.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 even for fresh offenders.

9.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 10 to 50 grammes of ketamine, the sentence ranges from 4 to 6 years' imprisonment.  For up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years' imprisonment. 

10.In determining the proper starting point, 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.

11.I note the defendant's claim that half of the drugs was for self-consumption.  I bear in mind the principles laid down HKSAR v WONG Suet Hau & another [2002] 1 HKLRD 69 concerning this issue.  In addition to his own admissions and the manners in which the drugs were packaged, packaging paraphernalia (an electronic scale and many empty re-sealable plastic bags) were found in the defendant's home; he is plainly a trafficker.  I accept that his conviction records are indicative that he may well be a drug user; however, I reject his claim that half of the drugs found was for his own consumption. 

12.The defendant trafficked in a cocktail of drugs consisting of 10.63 grammes of ketamine and 6.36 grammes of cocaine.  For 10.63 grammes of ketamine, the appropriate starting point is 4 years.  For 6.36 grammes of cocaine, the appropriate starting point is 4 years.  In the present case, had the whole quantity of the cocktail been the more serious drug (i.e. 16.99 grammes of cocaine), the starting point would have been 5.5 years.  Based on the nature and quantities of the cocktail components, instead of simply adding 4 years onto 4 years, I consider that the "combined" approach would arrive at a realistic and fair sentence. 

13.To adequately and accurately reflect the seriousness of the drugs involved as well as the more potent and harmful effect of a cocktail of drugs, I adopt a starting point of 6.5 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 52 months.  Regarding his claim for partial self-consumption, I am prepared to grant him a nominal discount of 2 months.  Apart from this, I see no other mitigating factors which warrant any further discount. The sentence I pass is 50 months' imprisonment.

Please refer to CACC213/2013 for the relevant appeal(s) to the Court of Appeal.