HKSAR v. Wong Wah Ching

HCCC 92/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 92 OF 2016

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REASONS FOR SENTENCE
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1.On 19 February 2016, the defendant pleaded guilty during the course of committal proceedings in the court below to the offence of trafficking in a dangerous drug, namely, 111 g of a solid containing 87.7 g of heroin hydrochloride. As a result, he was committed to the Court of First Instance for sentence.

2.The agreed facts giving rise to the offence are that on 12 July 2015, the defendant was intercepted by Customs officers at Customs Clearance at Lo Wu Control Point.  The Customs officers searched the defendant and they found concealed in his underpants an object wrapped in a piece of paper which contained four plastic bags consisting of the drugs as specified in the offence.

3.The defendant was arrested and cautioned and in answer to questions he said that a stranger in mainland China gave him the object, being four ounces of heroin which he referred to as white powder.  He said that he was to deliver the heroin to Mongkok and to wait there for someone to contact him by phone.  It was agreed that he would receive $500 as a reward for every ounce of heroin he delivered.  The street value of the heroin was $90,243. 

4.Also found on the defendant at the time of the arrest was HK$13,851.5 cash, RMB$1,177.8 cash and two mobile phones. 

5.The defendant admitted that he was unlawfully trafficking in the heroin seized from him. 

6.The defendant is 57 years of age.  He is married with two sons aged 26 and 24 respectively.  He states that he only received primary school education.  At the time of the arrest, the defendant resided with his family in a public housing flat in Tuen Mun and was a taxi driver earning about $13,000 per month.  He has prior convictions for offences relating to drugs.  In 1986 and 1992, he was convicted of drug offences for which he was ordered to attend a drug addiction treatment centre.  Later, however, in 2000 and 2012 he was again convicted of drug offences with the latter conviction relating to trafficking in a dangerous drug for which he received a term of imprisonment of 40 months.  He was discharged from custody in relation to that sentence on 31 December 2013. 

7.Although in the antecedent statement of the defendant it is claimed he is not a drug abuser, this seems to be contrary to his past criminal record and in any event Mr Maurice Tracy, for the defendant, has confirmed that he has, on and off, been a drug abuser.  Notwithstanding the defendant’s problem with drugs, Mr Tracy submits that he has a good relationship with his family and that he is remorseful for what he has done and determined to abstain from drugs after serving his sentence for the present offence.

8.The defendant’s personal circumstances as submitted do not provide any meaningful mitigation in light of the gravity of the offence, except for his plea of guilty. 

9.According to the sentencing guidelines for the quantity of narcotic content involved of 87.7 g of heroin, the defendant is in the band of 50 to 200 g where the guideline starting point for traffickers after trial, subject to any enhancement, is 8 to 12 years’ imprisonment. According to the narcotic content of heroin in this case, I will adopt a starting point of 9 years’ imprisonment.  See R v Lau Tak Ming [1990] 2 HKLR 370. 

10.The cases that address the issue of enhancement for an international element are HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197; and HKSAR v Chung Ping Kun [2014] 5 HKLRD L2.  Bringing drugs into Hong Kong from mainland China is considered  to constitute an international element.  In the latter case of Chung Ping Kun, the Court of Appeal at §9 suggests levels of enhancement as a broad guideline for hard drugs below 1,000 g.  For up to 250 g, the Court of Appeal suggests a level of enhancement of 6 months.  It would seem that the amount of drugs involved is a factor when adopting a level of enhancement for an international element. Although there may be other factors as well, that a court should take into account when determining what is an appropriate enhancement in the circumstances of the case for the international element.  Accordingly, I will enhance the starting point by 3 months to 9 years and 3 months’ imprisonment. The defendant is entitled to a one-third discount for his early plea of guilty and accordingly he is sentenced to imprisonment for 6 years and 2 months.

Mr Lenny Cheng, PP of Department of Justice, for HKSAR

Mr Maurice Tracy, instructed by Mike So, Joseph Lau & Co, assigned by Director of Legal Aid, for the defendant