HKSAR v. Wong Chi Kit

DCCC 1163/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1163 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

Facts

2.The defendant admitted the summary of facts read out in Court by the learned counsel for the prosecution.  For the purpose of sentencing, I just repeat the following.

3.Around 7:20 p.m. on 22 September 2016, the defendant alighted from the driver seat of a private car parked near Sau Ming Road, and entered Sau Ming House of Sau Mau Ping Estate.  His action was noticed by a group of police officers.  About 10 minutes later, the defendant came out of Sau Ming House.  The police officers then intercepted the defendant on the ground floor outside the building and conducted a search on him.  The officers found inside the right pocket of his shorts two transparent re-sealable plastic bags, with one of them containing 20 transparent re-sealable plastic bags containing what were subsequently confirmed to be 3.88 grams of a solid containing 3.53 grammes of cocaine, and the other one also containing 20 transparent re-sealable plastic bags containing what were subsequently confirmed to be 3.91 grams of a solid containing 3.54 grammes of cocaine.  The defendant had also with him HK$230, a mobile phone, a pack of cigarettes, a lighter and the car key for the vehicle from which he alighted.

4.The defendant was then arrested and cautioned.  Under caution at the scene of arrest and during a subsequent video-recorded interview, the defendant claimed that the dangerous drugs were for his own consumption.

5.The total quantity of dangerous drugs found on the defendant was 7.79 grames of a solid containing 7.07 grammes of cocaine.  The estimated retail value of the drugs at the time of seizure was HK$8,655.

6.A search of the vehicle driven by the defendant produced HK$6,050 and two mobile phones. The defendant said under caution that the money and the mobile phones belonged to him.

7.When the defendant pleaded guilty to the charge, he claimed that about one-third of the drugs found on him were for his own use.  The learned solicitor for the defendant Mr. Li agreed that despite this claim of the defendant, the defendant could be properly convicted of this charge of trafficking in dangerous drugs.

Criminal record

8.The defendant had 4 previous convictions all for the offence of possession of dangerous drugs.  He was last sentenced in October 2008 when he was sentenced to be detained in a drug addiction treatment centre.

Personal and family background

9.The defendant was born in Hong Kong.  He is now 29 years old.  He is single.  His father passed away 10 years ago.  He lived with his mother aged 59 who was a housewife, one elder sister and one elder brother.  He received education up to Form 3.  According to Mr. Li, the defendant worked as a driver earning HK$15,000 a month prior to his remand.

Mitigation

10.Mr. Li informed this Court that while the defendant admitted this charge of trafficking, he claimed that about one-third of the drugs were for his own use.  Mr. Li said that the defendant had abused drugs for 5 years, and that he would crush the cocaine and put them into cigarettes for smoking.  When this Court made known to Mr. Li as well as the defendant that this Court required evidence to support the defendant’s claim and would not accept merely a statement from the bar table, Mr. Li took instructions from the defendant.  The defendant elected not to testify.

11.Mr. Li submitted that the defendant was very remorseful.  He submitted a letter written by the defendant in which the defendant said that he had reflected deeply and that he would reform himself.  He asked for a lenient sentence so that he would be able to take care of his elderly parent and to contribute to the society.  To demonstrate his wish to contribute to the society, the defendant produced a letter from the Director of Health proving that he had already agreed to be an organ donor.  Mr. Li asked this Court to take into account all the circumstances of the case and the defendant’s background so as to impose a sentence as lenient as possible.

Reasons for sentence

12.Trafficking in a dangerous drug has always been regarded by the courts in Hong Kong to be a very serious offence.  For this reason, even if the amount of the dangerous drug being trafficked is small, the usual sentencing option is still one of imprisonment.  It is only in cases where the facts are unusual or where exceptional mitigating factors exist that this sentencing option will not be employed.

13.In the present case, despite the defendant’s guilty plea and the mitigation advanced on his behalf, there is simply no justification for not imposing a prison sentence.  In fact, Mr. Li for the defendant only asked for a term of imprisonment as lenient as possible.

14.As to the quantum of the sentence, the Court of Appeal made it clear in the case of Attorney General v Pedro Nel Rojas[1] that the sentencing tariff for trafficking in heroin hydrochloride, which was laid down in the case of The Queen v Lau Tak Ming [2], was applicable to trafficking in cocaine.  According to these authorities, the appropriate starting point of the prison term for trafficking up to 10 grammes of cocaine was between 2 to 5 years.  This tariff will apply not only to cases involving actual trafficking but also to cases involving possession of dangerous drugs for the purpose of trafficking.  Hence, the fact that the defendant was not found to have actually handing over possession of the cocaine to others is immaterial.

15.Mr. Li informed me that the defendant claimed that part of the drugs in question were for his own use although the defendant could still be properly convicted of the trafficking charge.  Mr. Li said that the defendant claimed that about one-third of the drugs were for his own use.

16.In my view, the truthfulness of the defendant’s claim had to be investigated.  Despite the fact that he claimed under caution that he started taking cocaine 5 years ago, the facts admitted by him showed that he had undergone a urine test after his arrest and the test result was negative, thereby indicating that he had not taken any drug.  Mr. Li submitted that the urine test result only indicated that the defendant had not taken drug for the last 14 days prior to his remand and that it was not proof that the defendant was not a drug addict.  Mr. Li might or might not be correct, but even if he were right, the question to follow would be that if the defendant could stay away from cocaine for 14 days prior to his remand, it would mean that he was not a regular abuser of cocaine, and if so, what was the reason for him to possess this large quantity of cocaine.  There was also the question whether the defendant had the money to support his addiction.  In mitigation, Mr. Li said that the defendant earned HK$15,000 a month through working as a driver.  However, under caution, the defendant said that he had worked as a vehicle attendant for about a year, and he earned HK$600 to $700 a day, and that he worked about 10 days every month. It meant that at the time of his cautioned interview, he was saying that he worked in a different job and he earned a much reduced income, i.e. at most HK$7,000 a month.  He even told the police that he had to save around HK$1,000 to $2,000 a month, and that he had to spend HK$500 each time for taking drugs. What he said during his interview apparently showed that his income was not sufficient to support his living, his drug use as well as his savings at the same time.  Furthermore, a sum of over HK$6,000 were found inside the vehicle he was driving, and he claimed that this sum of money was his wages given to him by a person called Ah Chi.  However, upon being asked about this Ah Chi, he claimed that he had forgotten the contact number of this person, and this must be surprising as this was the person who according to him provided him with lawful income.  There was also the question why he went to Sau Ming House at the time of his arrest when he was in possession of the large quantity of cocaine in question.  The defendant failed to answer that question upon being asked by the police during his interview. 

17.For the reasons given, this Court had reservation on the truthfulness of the defendant’s claim that he would himself use about one-third of the drugs in question.  This Court therefore informed Mr. Li and the defendant that if the defendant relied on this claim as mitigation, this Court required evidence to support that claim.  Mr. Li took instructions from the defendant.   This Court was informed that the defendant elected not to testify.

18.There is therefore no evidence to support the defendant’s claim that one-third of the drugs in question or any part thereof were or might be for his own use.

19.Furthermore, even if the defendant would use one-third of the cocaine in question himself, I do not find that proportion amounted to a “significant proportion” so that the defendant’s sentence should be adjusted to take into his claim of self-consumption: HKSAR v Liu Ming-sze (廖銘詩)[3].

20.Hence, this Court would sentence the defendant on the basis that all the cocaine in question were for trafficking purposes.

21.The quantity of cocaine in question was 7.07 grammes with an estimated retail value of HK$8,655.  Applying the tariff as laid down by the Court of Appeal, I adopt a starting point of 42 months’ imprisonment.

22.I note that the defendant had previous convictions but none of them related to trafficking in dangerous drugs.  His last sentence was imposed in October 2008.  It meant that he had not been convicted of any offence for the last 8 to 9 years.  For this reason, I shall not increase the defendant’s sentence on account of his criminal record.

23.As far as mitigation is concerned, the defendant says that he would contribute to the society and agree to act as an organ donor.  His promise is very much appreciated, but in my view, I cannot take this factor into account as mitigation.  Whether or not the defendant will actually donate his organ was a matter in the future, it may or may not occur.  Furthermore, there is nothing preventing the defendant from changing his mind. 

24.The only real mitigation is the defendant’s guilty plea.  Since he has indicated his wish to plead guilty at the very first opportunity, he is entitled to be given the full one-third discount.  There is however no other ground upon which his sentence can be reduced further.

25.For these reasons, the defendant is sentenced to a term of imprisonment for 28 months.

[1] CAAR15/1993

[2] [1990] 2 HKLR 370

[3] CACC103/2016