HKSAR v. Wong Wai Him

DCCC 471A/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 471A OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to two offences. The first one is a conspiracy to traffic in a dangerous drug in November of 2014, and the second offence is failing to surrender to custody which is failing to attend the trial of that case on 28 December 2015.

2.The defendant has accepted the amended Summary of Facts which sets out the facts on which the prosecution rely to establish the conviction on both offences.  It is apparent from that Summary of Facts that the conspiracy itself was an agreement to traffic a quantity of a drug into the Lai Chi Kok Reception Centre.  It appears the main movers in the conspiracy were a person who was incarcerated who is the 1st defendant and his girlfriend who is the 3rd defendant, and the defendant was to assist them.

3.The discovery of the conspiracy came about as a result of the recording and surveillance of visits between remanded persons and their businesses that occurred at the reception centre.  Remanded persons can receive visitors in something described as a visit room where they are separated by a transparent glass and they talk through a telephone.  Those visits can be monitored by staff at the reception centre. 

4.On 15 November 2014, the 3rd and 4th defendants in this case visited the 1st defendant and visited him at the reception centre.  This was a meeting that was in furtherance of the conspiracy to bring in a quantity of drugs to the prison, and the observations established that things were written on a piece of paper and copied by these two other people, and the arrangement appears to be that drugs would be brought and posted into the reception centre by the use of a three-dimensional card.

5.On 16 November 2014, the 2nd defendant together with the 3rd defendant visited the 1st defendant together in Lai Chi Kok, and further discussions took place in the reception centre which apparently had to do with the purchase of the drug and the dispatch of the drug to the reception centre.  

6.The 3rd defendant made a further visit to the 1st defendant on 18 November, and a card with the dangerous drug was received into the prison on 20 November 2014.  The card was a three-dimensional birthday card, and there was a transparent bag which contained 0.27 grammes of ketamine which was found underneath the three-dimensional decoration of the card.

7.The defendant was arrested and did make a recorded interview in which he admitted making a visit on 16 November 2014, and he said he had been asked by the 3rd defendant to post a letter. 

8.As far as the 2nd charge is concerned, the trial of this matter was listed for 28 December 2015.  The defendant was absent throughout the trial.  A warrant of arrest was issued on 29 December, and on 15 June this year, the defendant was arrested.

9.The defendant accepts today he conspired with the other defendants to unlawfully traffic the drugs and also that he failed to surrender to custody.

10.As far as his background is concerned, the defendant is aged 25, educated to Secondary 3 level in Hong Kong.  He is a driver and has a monthly income of around $12,000.  He also has a family.  He is single himself.  He has a girlfriend.  He lives with his parents and his elder brother in Tai Po.

11.The defendant accepts that he is and has been an addict to ketamine.  The defendant’s criminal record shows that as early as 2006, he was placed on probation.  In 2009, he received his first conviction of drug offence and was placed on probation for 24 months.  That probation order was extended and breached in 2012 when he was sent to the drug addiction treatment centre.  In 2013, 13 March 2013, the defendant was sentenced to 26 months’ imprisonment for trafficking in a dangerous drug.  And on 19 March 2015, the defendant went back into drug addiction treatment centre for another offence of possession of a dangerous drug.

12.What can be seen from this criminal record is the defendant is, as has been put in mitigation, a fairly long-term drug addict.  He has a serious drug problem, addiction problem.  And also the defendant must have involved himself in this conspiracy to traffic in the drugs in this case shortly after his release from offence of trafficking in dangerous drugs which must have been in 2014.

13.In mitigation, the defendant said he was induced by the 1st and 3rd defendants to commit the offence, and his role, he says, is lesser than those of the 1st and 3rd defendants. 

14.The defendant attributes his failure to attend court in December to have been immobilised through frequent urination which is often a problem that ketamine addicts have and also the fact that his fiancée was ill and had to receive an operation in respect of various uterine problems in 2015.

15.The defendant is clearly remorseful.  He has written a letter to the court to indicate that.  He is also supported by his girlfriend who has also written a letter to the court that is shown.  The defendant accepts that sentences of imprisonment are appropriate and will be imposed for these matters.  It is to be hoped that on completion of his incarceration, the defendant can find a way to combat his addiction and live a worthwhile life with his girlfriend.

16.Yes, as far as the 1st charge is concerned, the other three defendants were convicted after trial and received sentences of imprisonment, and their case has been reported and the starting point for sentence adopted is one of 2 years’ imprisonment for all defendants.  The headnote reads:

“While the quantity of ketamine involved was small, the smuggling of drugs into prison was a serious aggravating factor calling for a deterrent sentence. Conspiracy to smuggle drugs to a prisoner must attract a greater sentence than that imposed on a prisoner for possession of drugs he himself smuggled into prison. A proper starting point after trial was 2 years’ imprisonment.”

17.All defendants in that case, the starting point for imprisonment was 2 years’ imprisonment.  I can see no reason in respect of this defendant to depart from the starting point adopted by the judge in the other trial case of this matter.  So on the 1st charge, my starting point for sentence will be one of 2 years’ imprisonment, 24 months. 

18.I do note in respect of this case there is at least one further aggravating factor in respect of this defendant, and that is his conviction for trafficking in a dangerous drug, a similar offence in 2013, and the fact that the defendant committed this offence, a further offence, in a period that must have been after his release for that particular conviction. It shows a clear example of the failing of that sentence to deter the defendant from further criminal involvement in trafficking in dangerous drugs.  I consider that to be a serious aggravating factor and should lead to a further increase in sentence by 3 months.  So my starting point for sentence on the 1st charge is now one of 27 months’ imprisonment.

19.Insofar as mitigating factors are concerned, there is the defendant’s plea of guilty.  For this defendant, that would normally lead to a reduction in the starting point of one-third, and the defendant is unaffected by the more recent Court of Appeal case.  

20.However, in this case, the defendant did not attend his trial on 28 December.  In such circumstances, it has been recognised that the full one-third discount is perhaps inappropriate, and a reduced discount can be granted to the defendant in those circumstances, and figures in the region of 25 per cent have been adopted in other cases. 

21.I consider that the full one-third discount would again be inappropriate in this case.  Notwithstanding what the defendant said in mitigation, his decision not to attend trial was clearly deliberate and does not constitute in any circumstances a reasonable excuse for not attending or even particularly good mitigation for not attending.  I will deduct a figure in the region, as I said, of 25 per cent.  That will be a deduction of 7 months from the starting point of 27 months to a figure of 20 months’ imprisonment.  So the defendant’s sentence on Charge 1 is one of 20 months’ imprisonment.

22.On the 2nd charge, again there is no actual guideline sentence for failing to surrender to trial, but sentences of imprisonment are the normal sentence for these offences.  I will adopt a starting point for sentence of 6 months’ imprisonment and reduce that to 4 months’ imprisonment for the defendant’s plea of guilty.

23.I must also reach a sentence which is the proper overall total sentence.  Naturally, the sentence on the 2nd charge could be served entirely consecutively to the 1st charge.  But I consider to reach a correct overall total sentence for the defendant’s involvement in this matter, I will order that 2 months in that sentence to be served consecutively and the balance concurrently.  This will lead to an overall sentence of 22 months’ imprisonment.