HKSAR v. Wong Kai Lung

DCCC 818/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 818 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence of trafficking in a dangerous drug.

2.The drug is heroin hydrochloride, and the narcotic content of that drug is 43.5 grammes.

3.The defendant has agreed the facts of the case, and I have convicted him.  Insofar as those facts are relevant, they show that the case arose as the result of a stop and search operation by police on 14 June 2016 in Sham Shui Po.  The defendant was thought to be acting suspiciously.  He was stopped, and a shoulder bag he was carrying was searched.  A further search was conducted on the black waist bag hidden underneath the defendant’s shirt.

4.Inside that waist bag, two transparent resealable plastic bags containing the 43.5 grammes of heroin hydrochloride were found.

5.On arrest, the defendant said the drug was for his own consumption.

6.Along with that, cash of over $20,000 was found, together with three Smartphones and also 18 unused transparent resealable plastic bags.

7.The street value of that heroin was $42,000.

8.The defendant admits he was in possession of those drugs for the purpose of trafficking in them.

9.The antecedents, as agreed by the defendant, show that he is 44 years old.  At the time of his arrest he was a transportation worker.  He has a daughter and two sons.

10.The defendant has four previous convictions, one for possession of dangerous drugs in 1997, and he received a sentence of imprisonment of 4 years and 3 months in 2004 in a case of robbery.  The defendant has no previous convictions for trafficking in a dangerous drug, so there are no aggravating factors found in his criminal record.

11.The defendant has a background report which shows the defendant has been a drug addict for some time.  His addiction started at around about the age of 21.  He seems to be completely in the grip of his addiction.  He has registered many times for voluntary treatment at Shek Kwu Chau and also for methadone treatment.  None of these have been successful, and the defendant has been unable to deal with his addiction.  The defendant is described as a deep-rooted drug addict.  He has to buy what is described as large amounts and sell some in return to support his drug consumption.  That was the reason given to the probation officers for the commission of this offence.

12.The defendant has no concrete plan to quit the drugs, and appears to be resigned to receiving a custodial sentence. Altogether, it is a rather sad picture of a man in the grip of a serious drug addiction who supports his addiction through the sale of the drugs.

13.One mitigating factor that is found in the background report is the defendant would consume at least part of these drugs himself, and that is a factor that can be taken into consideration when determining the starting point for sentence.  The defendant was estimating his daily consumption at around $200 on heroin per day.  He would have consumed part of the drug that was found on him, and he said that when arrested.

14.The other mitigating factor that was put forward was that the defendant had attempted to provide some assistance to the police, but I understand no useful information could be given by the defendant; but it does show willingness to assist the authorities.

15.As far as the calculation of sentence is concerned, the starting points for sentence in respect of the offence of trafficking in dangerous drugs are dealt with by way of guideline sentences, and the implementation of the guideline is dependent largely on the quantity of drug that is possessed for the purpose of trafficking.

16.The quantity that I am concerned with here is 43.5 grammes of the narcotic heroin hydrochloride.  This lies within an operative guideline of 10 to 50 grammes of heroin hydrochloride, which is a sentence of between 5 to 8 years’ imprisonment, which would, at the highest level, take it beyond the jurisdiction of this court.

17.It would appear the appropriate sentence would lie at my jurisdictional limit, which is 7 years’ imprisonment, and that is the starting point I will adopt.

18.There are two mitigating factors:  firstly, the defendant’s self-consumption of the drug; and secondly, the plea of guilty.

19.As far as self-consumption is concerned, the court can take that into account where a significant amount of the drug would be consumed by the defendant.  The defendant is a deep‑rooted drug addict; a long-term drug addict.  I do not think it could be argued that the defendant would consume a substantial amount of the drug every day.  I am prepared, without further evidence, to accept that the defendant would consume a significant portion of the drug.

20.Where that is the case, the court can implement a reduction from the starting point of sentence of between 10 to 25 per cent of the original starting point.  It does appear to be that this calculation must be largely speculative.  The defendant has not consumed it yet.  How much he will consume will depend on when he is arrested, presumably, and how much he can sell; so it is very much an estimate, but the estimate must lie within the figure of between 10 to 25 per cent of the starting point.

21.What I am prepared to do in this case is reduce the starting point by 12 months to take into account this factor.  So the starting point of imprisonment now is 6 years’ imprisonment.

22.The defendant is entitled, of course, to a full one‑third discount from that figure, which leaves a final sentence for this offence of 4 years’ imprisonment, and that will be the sentence of the court.