HKSAR v. Ho Kwong

HCCC 98/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 98 OF 2016

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

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COURT: The defendant has been convicted on his own plea of one count of trafficking in a dangerous drug. The particulars of offence provide that on 3 August 2015, outside Ground Floor, No 155 Nam Cheong Street, Sham Shui Po, Kowloon, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 120.9 grammes of a crystalline solid containing 118.8 grammes of methamphetamine hydrochloride, commonly known as the ‘Ice’.

The Summary of Facts, which has been admitted by the defendant, provides that at about 0123 hours on 3 August 2015, a team of uniform police officers were on patrol in Cheung Sha Wan Road, near Nam Cheong Street. The defendant came in opposite direction and was talking over the phone. After seeing the police, the defendant acted furtively. The defendant was stopped outside 155 Nam Cheong Street.

As a result of a body search, the police found from inside the defendant’s left front trousers pocket, a vest shape plastic bag containing granular substances, put inside five transparent resealable plastic bags (four of which were double resealable bags). These resealable plastic bags were wrapped by tissue paper. Upon being questioned by the police, the defendant admitted that the granular substances found was dangerous drug ‘Ice’.

A mobile phone and $30 cash were also found on the defendant.

Upon subsequent analysis by the government chemist, the granular substances found inside the resealable plastic bags were found to be 120.9 grammes of a crystalline solid containing 118.8 grammes of methamphetamine hydrochloride.

The street value of this quantity of ‘Ice’ in August 2015 was $39,776.

The defendant was arrested by the police at the scene. He remained silent under caution. The defendant remained silent in a subsequent cautioned interview.

The defendant now admits that on 3 August 2015, he was unlawfully trafficking in the dangerous drug referred to in the indictment.

By way of personal background, the defendant is 45 years of age. He was born in Hong Kong in June 1971. The defendant has received education up to secondary Form 2 in Hong Kong. At the time of his arrest, the defendant was unemployed, without any income. The defendant is single. I am told that the defendant in fact has two children, aged respectively 8 and 10, who are being looked after by their mother.

The defendant has 21 previous criminal convictions, 17 of which are for possession of dangerous drug and one for trafficking in dangerous drug. The trafficking conviction was recorded in 2008 for which the defendant was sentenced to 8 months’ imprisonment.

In mitigation, Mr Alan So, on behalf of the defendant, realistically accepts that the most important matter is his early plea of guilty indicated at the pre-trial review.

The dangerous drug involved in the present case is 120.9 grammes of a crystalline solid containing 118.8 grammes of methamphetamine hydrochloride. In HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the Court of Appeal held that for trafficking in between 70 and 300 grammes of the ‘Ice’ drug, the proper tariff to be imposed, after trial, is 11 to 15 years’ imprisonment.

In my view, based on the quantity of methamphetamine hydrochloride involved (118.8 grammes), the proper starting point for sentence in the present case should be 11 years and 10 months’ imprisonment.

Mr Alan So submitted that a part of the drug involved in this case was in the defendant’s possession for his own consumption. The stance of the prosecution is that, given the defendant’s prior criminal record, the prosecution is prepared to accept that some of the drug was for the defendant’s self-consumption. However, the prosecution cannot accept that a “significant proportion” of the drug was for self-use. Given the prosecution’s position, Mr Alan So conceded on behalf of the defendant that he would not try to establish that a “significant proportion” of the drug was intended for self-consumption.

In these circumstances, the defendant is clearly not entitled to the 10 per cent to 25 per cent discount indicated by the Court of Appeal in HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572, which is appropriate only where there is a finding that a “significant proportion” of the drug being unlawfully trafficked was intended for self-use.

In all the circumstances of the case, I am only prepared to give a discount of 6 months to reflect the defendant’s claim in mitigation that a portion of the drugs was intended for his own consumption. This takes the starting point down to 11 years and 4 months’ imprisonment. I shall give the defendant the full one-third discount for his guilty plea.

The defendant is accordingly sentenced to 7 years and 6 months’ imprisonment.