HKSAR v. Wong Ka Ying

DCCC 1099/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1099 OF 2016

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REASONS FOR SENTENCE

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

Facts

2.At about 17:24 hours on 13 September 2016, PC9115 was in plainclothes on patrol duty in Mongkok and spotted the defendant looking left and right with his right hand on his right front trousers’ pocket.  PC9115 then intercepted the defendant for enquiry and revealed his police identity.  The defendant quickly walked away.  PC9115 grabbed the defendant’s right arm from behind to stop him and also told him to stand still.  However, the defendant ignored him and tried to leave.  SGT59076 came to assist and was able to intercept the defendant.

3.A search was conducted on the defendant.  One small plastic tissue bag, one transparent re-sealable plastic bag containing another plastic bag containing suspected heroin, which was later confirmed by the government chemist to be 14 grammes of a mixture containing 8.78 grammes of heroin hydrochloride (a salt of heroin), and another plastic bag containing suspected heroin, which was later confirmed by the government chemist to be 12.8 grammes of a mixture containing 7.75 grammes of heroin hydrochloride (a salt of heroin), were found in the defendant’s right front trousers’ pocket.  The defendant was arrested. Three mobile phones and currencies including HK$833.8, RMB 45.6 and Thai Baht 900 were also found on the defendant.

4.At a video recorded interview, the defendant under caution admitted, inter alia, that: (i) the said currencies and mobile phones belonged to him but he had forgotten the phone numbers and (ii) he worked as a transport worker.

5.The subject drugs could have been sold at the street level to drug abusers for $21,286 in September 2016.

6.At the material time, the defendant was in possession of the subject drugs for the purpose of trafficking.

Criminal record

7.The defendant had been sentenced on 19 occasions for a total of 24 offences including 8 drug related offences.

Mitigation

8.The defendant, now aged 37, is single and received education up to secondary level.  His parents divorced when he was 3 years old.  He lived with his father.  As a result of his parents’ divorce, he had not received appropriate supervision or guidance.  He started mixing with undesirable peers when he was a teenager. 

9.He used to work as a casual decoration/construction site worker.  He made financial contributions to support his father even when they were living apart. 

10.His self-blame emotion often troubled him.  He has decided to turn a new leaf and also wants to look after his father.

Sentence

11.I have carefully considered everything said by Ms Tai on behalf of the defendant in mitigation.

12.The sentence upon conviction after trial for trafficking in heroin between 10 grammes and 50 grammes is 5 to 8 years’ imprisonment, according to the sentencing tariffs laid down by the Court of Appeal in R v Lau Tak Ming & Others, CACC 230/1989.  I find that trafficking in 16.53 grammes of heroin hydrochloride would attract a starting point of about 64 months.

13.The defendant has no similar conviction of trafficking.  Despite his drug related convictions and the fact that he committed the present offence shortly after his release from prison in August 2016, I am prepared to deal with him leniently and do not consider them as aggravating factors.

14.Relying on the defendant’s drug related convictions and his urine test conducted by the Correctional Services Department shortly after the arrest indicating a positive result to opiate, the Defence put forward that part of the drugs was for the defendant’s own consumption and suggested a discount of about 15 % be afforded to the defendant in this regard.  The Prosecution accepted that the defendant was a drug addict at the time of the offence and the said positive urine test result was related to a heroin related drug.

15.I have considered the decision of the Court of Appeal in HKSAR v Tsoi Man Chun, CACC 414A/2015 and CACC 414/2015, in which HKSAR vChow Chun Sang CACC 135/2011 and HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 were considered, and the range of factors for determining the issue of drugs for own use set out therein.

16.The subject drugs were contained in two plastic bags.  As revealed in the defendant’s criminal record, the first drug related conviction took place in 1994 and the last one in 2016.  Given the defendant’s drug taking history, drug related convictions and the way in which the subject drugs were packed, I am prepared to accept that some of the drugs may be for own use. 

17.However, possession of drugs carries a sentence in any event.  The latent risk of the drugs for own use finding their way to the hands of others certainly existed.  Regarding drugs for own use, I am satisfied that the starting point should be reduced by 8.5 months to one of 55.5 months.  I don’t find that there are any other mitigating factors justifying a reduction. 

18.Giving full credit to the defendant for his guilty plea, I sentence him to a term of 37 months’ imprisonment.