HKSAR v. Wu Yuk Man

HCCC 199/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 199 OF 2016

-----------------

-----------------

---------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

---------------------------------

COURT:

The defendant has pleaded guilty to one count of trafficking in a dangerous drug, namely 27.3 grammes of a crystalline solid containing 26.5 grammes of methamphetamine hydrochloride.

In the early hours of the morning of 15 August 2015, at about 2.57 am, police officers observed the defendant crossing the road hurriedly in Tong Mi Road, Mong Kok. He was intercepted and upon a search, the dangerous drugs named in the charge were found tucked between the defendant’s waistband of his trousers and his belly.

Under caution, he claimed that the drugs had been bought from a man in a park in Mong Kok Road for his own consumption. Also found on him was about $2,000 in cash. Police subsequently searched his home in Lok Fu and nothing suspicious was found.

In the video-recorded interview subsequently, the defendant denied that he knew what the substance was that was found on him. As Mr Pun properly put it, he refused, which was his right, to disclose how he had obtained the substance and whether he had a habit of taking drugs.

The drug seized had an estimated retail value of $8,982.

The defendant is aged 50 and has a very poor record, some 58 previous convictions in the 44 appearances he made in court, and 16 of those previous convictions were drug related with five for trafficking. His last conviction was in August 2013 for burglary and he was released from prison about six months prior to this offence. He had already been sent to a Drug Addiction Treatment Centre on three previous occasions. After his release from prison, the defendant applied for CSSA and also, during the period before he was arrested for this offence, he also worked on a casual basis as a decoration worker, I am told, earning about $800 a day.

It is submitted by Mr Pun that it is clear that the defendant is a drug addict because, on his remand, he had been sent for methadone and also, upon his remand, his urine was tested and shown to be positive for ‘Ice’.

It is clear that the strongest mitigating factor in this case is the defendant’s plea of guilty.

As Mr Pun properly recognised, the sentencing tariff for ‘Ice’ is that, for trafficking between 10 to 70 grammes of ‘Ice’, a sentence of 7 to 11 years after trial is recommended, according to the case of Tam Yi Chun [2014] 3 HKLRD 691. Mr Pun submitted, therefore, that a starting point sentence of 8 years for the quantity of drugs found in this case would be appropriate.

I agree that this is a proper starting point, taking into account the amount of drugs and the defendant’s previous criminal record, and therefore 8 years would be appropriate.

It is in mitigation that Mr Pun put forward the fact that this court should recognise that part of the drugs found were for the defendant’s self-consumption and he prayed in aid the case of HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 79, para A to H where the Court of Appeal listed out the factors that should be considered by the sentencing court. Mr Pun had attempted to persuade this court that a discount of 10 per cent to 25 per cent from the normal starting point should be given if the court accepts that part of the dangerous drug is for self-consumption.

I am grateful to Mr Cheng for submitting the case of HKSAR v Liu Ming Sze, CACC 103/2016 where the Court of Appeal had considered the various cases relating to the actual discount and was of the opinion that the discount, if it is to be 10 to 25 per cent, would mean that the sentencing court is satisfied that a significant proportion of the dangerous drugs was intended for consumption and not for trafficking. Unless the sentencing court finds that a significant proportion of the dangerous drugs was for self-consumption, then the matter of discount to reflect the element of self-consumption is really at the discretion of the sentencing judge.

I take into account the fact that has been submitted before me, in that the defendant had only been released from prison about six months prior to his arrest for the present offence. He was on CSSA and had worked as a casual decoration worker. Therefore, it means that his earning is rather unstable and depends on how many days he would work. So I do not believe or accept that a significant proportion of the present drugs were for his own consumption. However, being a drug addict, he may take a very small part for his own consumption.

So having assessed all that and accepting a starting point of 8 years as being reasonable in the circumstances, the defendant is entitled to one-third off for his plea, and a further discount for the fact that a small part of the drugs were for his own consumption.

So I reduce the sentence from 8 years to 5 years.