HKSAR v. Wong Wang Hing and Another

DCCC 407/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 407 OF 2013

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Reasons for Sentence

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1.The 2nd defendant pleaded guilty to the only charge he faced, Charge 2, on the first day of trial. That is, he admitted trafficking in 56.42 grammes of a solid containing 45.72 grammes of ketamine.

2.The 1st defendant pleaded not guilty to Charges 1 and 2.  He was convicted after trial of both trafficking dangerous drugs charges.

3.The particulars of the 1st charge are that on 9 November 2012, he unlawfully trafficked 13.73 grammes of a solid containing 9.78 grammes of ketamine and 0.56 gramme of a powder containing 0.45 gramme of ketamine.  That is a total purity of 10.23 grammes of ketamine. 

4.The 2nd charge, the particulars of the 2nd charge are that on 13 November 2012, he with the 2nd defendant unlawfully trafficked, namely 56.42 grammes of a solid containing 45.72 grammes of ketamine.

5.I do not intend to repeat all the facts of this case or my findings, I gave full reasons in my verdict.

6.In short, for Charge 1, I rejected the 1st defendant’s evidence that he had the dangerous drugs of Charge 1 found in his vehicle and on his person for his own consumption.  His evidence was riddled with inconsistencies, discrepancies and evasive answers.  I found the evidence pointed to the only reasonable inference that he possessed the drugs for the purposes of trafficking.

7.I did find that there would perhaps have been some of the ketamine for his own consumption, especially the ketamine found in a folded $20 note.  However, that quantity was small.  I had no evidence of the defendant’s drug habit.  He was unable to particularize his habit.  I cannot particularize what portion, if any, would be for self-consumption. 

8.For Charge 2, I rejected the 1st defendant’s evidence that he knew nothing of the dangerous drugs found in the vehicle he was driving on 13 November.  The police arrested the 1st and 2nd defendant in the vehicle but not before the 1st defendant tried to drive away after the police approached.  The police officer broke a window with a truncheon before the vehicle stopped.  There was a plastic bag placed between the driver and the front passenger seat.  In it were 5 bags containing the ketamine of Charge 2 and some empty resealable plastic bags.

9.The 2nd defendant gave evidence that all the dangerous drugs belonged to him and the 1st defendant had no knowledge of the drugs. 

10.I rejected both defendants’ evidence.  The 2nd defendant for his own reasons tried to shoulder all the blame.  But I did not believe his evidence as to how he came to have the dangerous drugs and how and why he placed them on the floor between the seats.

11.I rejected the 1st defendant’s evidence that he had no knowledge.  His evidence again was inconsistent and full of discrepancies.  He could not explain those discrepancies.  He could not explain how he had over $20,000 on his person in a space of 5 days and he could not explain his drug habit.

12.I was sure the only reasonable inference was that both defendants in the vehicle possessed the dangerous drugs in the bag for the purposes of trafficking.  

13.I have heard mitigation put forward on behalf of both defendants.

14.By way of background, the 1st defendant is 32 years old now and single.  He has three previous convictions for possession of dangerous drugs but no previous convictions for trafficking dangerous drugs.

15.The 2nd defendant is 34 years old.  He has many previous convictions, over 20.  However, he has only one previous for trafficking dangerous drugs in 2008 which he received a sentence of 12 months. He has four other previous convictions relating to possession of dangerous drugs. 

16.Both defendants say they were drug addicts at the material time. 

17.I have a letter from the Christian New Life Association written for the purpose of the 2nd defendant’s mitigation.  It says he expresses remorse and has found God.  He committed the offence because he was in debt at that time. 

18.For trafficking ketamine, there is a guideline this court will follow.  The authority is The Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323.  The relevant guidelines for this offence are that where between 1 to 10 grammes of ketamine is trafficked, an appropriate starting point would be between 2 to 4 years, and where between 10 to 50 grammes of ketamine is trafficked, this would attract a starting point of between 4 to 6 years.

19.Mathematically speaking, the quantity of dangerous drugs in Charge 1 should attract a starting point of 4 years.  And for the quantity of dangerous drugs in Charge 2, this should, according to the authority, attract a starting point of 5 years and 9 months.

20.The 1st defendant committed the 2nd offence whilst on bail for the 1st offence.  He was only given police bail 4 to 5 days prior to the 2nd Charge.  That is an aggravating factor I consider relevant in arriving at an appropriate starting point.

21.Defendants, please stand up.

22.I deal with the 2nd defendant first.  After considering mitigation, facts of the case, quantity of the drugs and the guidelines as well as the defendant’s plea, for Charge 2, the 2nd defendant, I take a starting point of 5 years’ imprisonment.  Defendant has pleaded guilty and is entitled to a discount of one-third for his plea.

23.For Charge 2, the 2nd defendant is sentenced to 3 years and 4 months’ imprisonment.

24.For the 1st defendant, I have also considered similarly mitigation put forward, facts of the case, quantity of the dangerous drugs and for Charge 1, I take a starting point of 3 years and 6 months.  For Charge 2, I would have taken a lesser starting point of 5 years but because of the aggravating factor of this offence being committed whilst on bail, I take a starting point of 5 years and 6 months.

25.The 1st defendant has been convicted after trial.  There is no reason for any discount from the starting point.  I consider that the two offences were committed only days apart.  I would order that both sentences be served concurrently. 

26.The 1st defendant, for Charge 1, he is sentenced to 3 years and 6 months’ imprisonment.  Charge 2, 5 years and 6 months.  As they are both being served concurrently, the total is 5 years and 6 months’ imprisonment.