HKSAR v. Wong Ka Wai

DCCC 146/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 146 OF 2016

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Reasons for Sentence

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1.The defendant today has pleaded guilty to two charges:

(1) Charge 1, possession of a dangerous drug, namely, 0.02 grammes of a solid containing cocaine;

(2) 2nd charge, the most serious charge, trafficking in a dangerous drug, namely, 15.12 grammes of a solid containing 11.17 grammes of cocaine.

2.The facts of this case are straightforward.

3.On 21 November last year at about midnight, police officers were on patrol in Verbena Heights, Tseung Kwan O.  They were obviously walking the stairs from top to bottom.  They saw

the defendant on the staircase between the 10th and 11th floor, crouching down. Obviously, that behaviour is suspicious and they intercepted the defendant. They conducted a body search and in the defendant’s right front trouser pocket found a $100 banknote containing the cocaine of Charge 1.

4.The defendant was arrested, cautioned and he admitted that he had paid $350 to buy that packet of cocaine.  It was for his own consumption.

5.On the defendant, the police found house keys and subsequently conducted a house search.  The defendant’s home was on the 11th floor of that same building.  In the defendant’s bedroom on a shelf the police found 76 packets containing all the cocaine of Charge 2. 

6.The estimated street value of this amount of cocaine is just over $22,000.

7.After the defendant was cautioned for trafficking in a dangerous drug, he made a full admission to the police.  He admitted that a person known as “Ah Hei” asked him to keep the cocaine at his home and sell them to customers as directed.  Effectively, the defendant was acting as a drug courier.

8.In a subsequent video recorded interview, the defendant made further admissions to the police.  He told the police that “Ah Hei” arranged for the 100 packets of cocaine to be kept by him at home and he would tell the defendant when and where to deliver the cocaine to customers. Each packet cost $350 and the defendant would receive as a remuneration $50 for each packet.  He had already sold 24 packets.  He should have had cash of $8,000-odd, but he had lost the money given to him by customers by betting on football.

9.The defendant is only 20 years old.  His best mitigation today is plea of guilty.  The defendant also has a clear record.

10.I have been told in mitigation that the defendant has been educated up to Form 4 level; did attend a VTC course but unfortunately did not complete it.  After that, he has worked in numerous jobs and before his arrest was working at Cathay Pacific as a warehouse porter.  At the time of his arrest his salary was HK$15,000.

11.I have also been told in mitigation that the defendant’s parents both are in full-time employment, as is his elder sister. The defendant is the only son of the family.

12.I have had a letter from the defendant’s parents and I see that his family and friends are in court here today to support him. 

13.I have taken into account what the parents have said in their letter.  I do note that they blame themselves to some extent, but, in my opinion, his parents should not, as the defendant is old enough to know right from wrong and can make decisions for himself, but I do accept the defendant is remorseful and his parents themselves said he knows he must be held accountable for his actions. 

14.I am sure it has been explained that there are tariffs where trafficking cocaine is concerned and I have considered the authority of R v Lau Tak Ming [1990] 2 HKLR 370.  That authority refers to heroin, but the Court of Appeal have set out that the same tariff applies for cocaine and the Court of Appeal have held that where between 10 to 50 grammes is trafficked, between 5 to 8 years would be an appropriate starting point.

15.Here, for Charge 2, mathematically speaking, a 5-year starting point is appropriate.

16.What I have taken into account is I am sure the defendant is not the mastermind.  As I have said, the defendant’s role was one of a drug courier.  He has been used by a drug trafficker to take all the risks.

17.I also take into account that the defendant is genuinely remorseful.  That shows from his plea today. 

18.I can see his parents, as they have said, would be very disappointed and sad, but I can see from the letter the defendant’s promised his parents he would not re-offend and I hope he keeps his promise to them.

19.Defendant, please stand up.

20.I take into account, as I have said, the facts of this case; the quantity and nature of the dangerous drugs.  I obviously take into account the defendant’s clear record, mitigation put forward and the fact he co-operated with the police after his arrest.

21.Having taken those factors into account, for Charge 1 I take a starting point of 15 months’ imprisonment. 

22.The defendant has pleaded and is entitled to a discount of one-third.

23.After that discount is applied, for Charge 1 I sentence the defendant to 10 months’ imprisonment.

24.For Charge 2, I will take a starting point of 4 years and 6 months.

25.The defendant has pleaded guilty and is entitled to a discount of one-third.

26.After that discount is applied, for Charge 2 the defendant is sentenced to 3 years’ imprisonment.

27.Taking into account the facts and dates of both charges and the totality principle and order both charges to be served concurrently.

28.Therefore, total sentence is one of 3 years’ imprisonment.

COURT: Do you understand that sentence?

DEFENDANT: Understand.