HKSAR v. Wong Kin Hing

HCCC 12/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 12 OF 2014

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: The defendant, Wong Kin-hing, was charged with two counts of trafficking in a dangerous drug and one count of possession of a dangerous drug, contrary to section 4(1)(a) and (3) and section 8(1)(a) and (2) respectively of the Dangerous Drugs Ordinance, Chapter 134. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The Admitted Facts disclose that at around 2130 hours on 2 July 2013, the defendant was observed by police officers to have alighted from a private car and walked towards Shatin Park. When the defendant returned to the car, he was intercepted. From his shorts pocket, police found two bags containing what was later confirmed to be 11.06 grammes of a powder containing 8.48 grammes of ketamine. Upon arrest and under caution, the defendant said the ketamine was for his own use. That is the 1st count.

At the time, the defendant’s wife and child were also on board the private car. A search of the private car resulted in another bag containing what was later confirmed to be 2.49 grammes of a powder containing 1.89 grammes of ketamine found at the car door. Under caution, the defendant again said the ketamine was for his own use. That is the 2nd count.

The police searched the defendant’s home in the early hours of 3 July 2013. Inside the bedroom, the police found traces of white powder on top of a dressing table. Inside the drawer, the police found a set of electronic scales, a pair of scissors and a packet of what was later confirmed to be 451.77 grammes of a solid containing 339.38 grammes of ketamine and 0.83 gramme of a powder containing 0.45 gramme of ketamine. Under caution, the defendant said the ketamine was for his own consumption and for sale to others. That is the 3rd count.

During a video-recorded interview, the defendant gave details of how he had purchased the dangerous drug from someone called Ah Chun and how he weighed and repacked the dangerous drug for distribution. He admitted he sold dangerous drug as he was in financial difficulties. He stressed his wife was separated from him and lived apart and did not know about his dealings with dangerous drug.

The retail value of all the ketamine was estimated to be HK$56,404.

The defendant admitted he was trafficking the ketamine found on his person and found inside his home and that he was in possession of the ketamine found inside the car.

The defendant is aged 29 with 10 previous convictions; three of them are for possession of dangerous drug, for which he was fined and put on probation. He studied up to form 3 level and had worked as a kitchen assistant and a transportation worker.

Mr Raymond Yu, mitigating on behalf of the defendant, informed me that the defendant lost full-time employment in 2013 and worked part-time since. The defendant is married but he and his wife had been separated in 2011. They have a son who is now 3 years old and living with the defendant’s wife. The defendant was responsible for the upkeep of his wife, their son and his wife’s 8-year-old daughter from a previous marriage. Mr Yu informed me that due to financial difficulties, the defendant resorted to trafficking in dangerous drug.

I was also informed that the defendant was a drug dependant at the time of the arrest and some of the ketamine was intended for his own use. Mr Yu referred me to the authority of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 and asked me to give a discount in relation to the starting point.

Mr Yu told me that the defendant is very remorseful and vowed never to touch dangerous drug again upon his release from gaol. The defendant wrote to me himself to express his remorse and his father also wrote to me asking for leniency on the defendant’s behalf. A Sai Kung District Council member and a Pastor of the Christian New Life Association also wrote on the defendant’s behalf, asking for the court to give the defendant a chance and sentence him leniently.

Trafficking in dangerous drug is a serious offence and offenders are severely punished when caught. If one looks at the two amounts of ketamine trafficked separately, one would arrive at a lower starting point for Count 1, that is 8.48 grammes, as compared to Count 3, 339.38 plus 0.45 grammes.

It is clear, however, that the two counts of trafficking in dangerous drug were closely connected. I am of the view that the proper approach is to have regard to the total amount of dangerous drug in these two counts to arrive at an overall starting point.

I see a couple of cases, HKSAR v Chow Yu Chi, CACC 359/2000, HKSAR v Cheung Kwok Leung, [2003] 3 HKLRD 542, and HKSAR v Wong To [2001] 4 HKC 499. In Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal set the guidelines for the trafficking of ketamine. The ketamine involved here amounted to 348.31 grammes; that is 8.48 plus 339.38 plus 0.45. For trafficking 300 to 600 grammes of ketamine, the appropriate starting point is within the range of 9 to 12 years.

In the case of Chow Chun Sang, the Court of Appeal said, in paragraph 19 of the judgment:

“We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, then ensuing discount to sentence should, depending on circumstances, fall somewhere between 10 per cent and 25 per cent of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organised and premeditated, and the background and criminal record of the defendant.”

Having considered all the circumstances of this case, in particular, the defendant, although a first offender for the offence of trafficking in a dangerous drug, was acting as more than a mere courier in that he weighed and repackaged the dangerous drugs for sale, and he was trafficking the ketamine for financial gain; and bearing in mind that the defendant intended to have some of the ketamine for his own consumption, a fact borne out by his own plea of possession in relation to the 2nd count in this case and his previous convictions, I am of the view that the proper starting point is one of 8 years’ imprisonment, which works out to be slightly over 15 per cent discount from 9½ years’ imprisonment.

The defendant had pleaded guilty at the earliest opportunity and I will give him the full one-third discount. There are no other mitigating circumstances. The fact that the defendant has financial difficulties or that his family will suffer when he is in gaol are not mitigating factors. One must remember that by trafficking in a dangerous drug, the defendant had destroyed many families.

So the total sentence for the two offences of trafficking of the ketamine is therefore 5 years and 4 months’ imprisonment.

As for the possession of dangerous drug, the quantity is relatively small, 1.89 grammes. Although this is the fourth time the defendant is convicted of this offence, I am of the view that a starting point of 12 months is proper. Giving the defendant the full one-third discount, the sentence is one of 8 months.

If the defendant had been found guilty of trafficking this amount of ketamine instead of possession of it - that is the 1.89 grammes - this relatively small quantity would not have made any difference to the starting point of the two trafficking counts. Although possession of a dangerous drug is a separate offence, I will order the sentence to run concurrently with the sentences imposed for the other two counts.

In other words, the total sentence for all the three offences is one of 5 years and 4 months’ imprisonment. So to achieve this result, the sentence for the 1st count will be 2 years’ imprisonment; for Count 2, 8 months’ imprisonment; for Count 3, 5 years and 4 months’ imprisonment. All sentences are to run concurrently, making a total of 5 years and 4 months’ imprisonment.