HKSAR v. Wong Wai Yin

HCCC 117/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 117 OF 2017

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

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

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

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

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

COURT: The defendant, Wong Wai-yin, pleaded guilty before me to one count of trafficking in a dangerous drug. The charge concerned 71 grammes of a solid containing 51.6 grammes of cocaine.

The facts as admitted by the defendant reveal that at about 2043 hours on 24 October 2016, police on anti-dangerous drugs operation were patrolling on the podium of Shan King Shopping Centre, Shan King Estate, Tuen Mun. They saw the defendant wandering near the planter on the podium. They intercepted the defendant and searched him. They found, inside the right front pocket of the defendant’s shorts, two plastic bags of cocaine, one containing 23.9 grammes of a solid containing 18.2 grammes of cocaine and the other one containing two plastic bags containing a total of 47.4 grammes of a solid containing 33.4 grammes of cocaine.

The total quantity of drugs seized was 71.3 grammes of a solid containing 51.6 grammes of cocaine. That formed the subject matter of the charge.

The defendant was arrested and cautioned for trafficking in a dangerous drug. He said, under caution, he just wanted to earn $3,000, so he helped someone to deliver the dangerous drug to Shan King Estate.

The estimated market retail value of the dangerous drug seized was $74,580.

The antecedents statement of the defendant says that the defendant is now 35 years old, locally born. He received education up to Form 3 in Hong Kong. The defendant told the police he was not a drug addict. He is married with one daughter but separated with his wife in 2009. He worked as a decoration worker. The criminal record of the defendant shows that he has six previous conviction records including two counts of possession of dangerous drug and one of conspiracy to trafficking in a dangerous drug.

Mr Poon, in mitigation, submits that contrary to what the antecedents statement says, the defendant is in fact a drug addict. He was a decoration worker earning $10,000 per month. He has a daughter who is now 9 years old and the defendant’s wife worked as a beautician.

The last conviction of the defendant in fact was in 2002, so the defendant was out of trouble for some 15 years. Mr Poon submits that the defendant got married in 2006. Since his marriage, the defendant decided to turn a new leaf and he was able to lead a law-abiding life for some years. In 2008, his daughter was born. The parents of the defendant are in their 60s and they are in court. The defendant has pleaded guilty to the charge and is now remorseful.

Mr Poon handed up a letter which shows that the defendant has signed up for organs donation. The reply letter from the Department of Health says that the letter from the defendant was dated 24 January 2017.

For the cocaine seized in the present case, Mr Poon submits that the defendant intended to consume 10 per cent of the drugs. Mr Poon submits the defendant had a traffic accident in 2014 and he submitted a medical report in support. Since the traffic accident, the defendant had to consume 1.5 grammes of cocaine each day whenever his right shoulder was painful. He needed to consume cocaine twice a day when he suffered from pain.

Mr Poon also handed up a urine test result which shows that on 27 October 2016, ie, shortly after the defendant’s remand, urine test showed that the defendant was positive to cocaine and cannabis. Mr Poon asked me to be as lenient as I can to the defendant.

In sentencing the defendant, I have borne in mind the nature of the drugs and also the quantity of the drugs involved in this case. This case concerned 71 grammes of a solid containing 51.6 grammes of cocaine.

The Court of Appeal in the case of Pedro Nel Rojas [1994] 2 HKCLR 69 says that the guidelines in Lau Tak Ming are the correct basis for sentence for trafficking in cocaine as cocaine and heroin are very closely alike in their degree of harm. According to the tariff set down in Lau Tak Ming, between 10 grammes and 50 grammes of narcotics, 5 to 8 years should be adopted as the starting point. 51.6 grammes of cocaine was found on the defendant. In my judgment, that calls for a starting point of 8 years’ imprisonment.

For the claim that the defendant intended to consume 10 per cent of the cocaine found on him, I have borne in mind the criminal record of the defendant. The defendant has two previous conviction records for possession of dangerous drugs, ie, in 1998 and 2000. A urine sample collected on 27 September 2016, ie, a few days after the defendant’s arrest, also yielded positive result in cocaine and cannabis. The urine test result shows that the defendant was a cocaine user at the time of his arrest.

On the other hand, the claim that he intended to use 10 per cent of the cocaine does not sit well with his admission under caution. The defendant told the police, under caution, that he helped someone to deliver the dangerous drug to Shan King Estate. If the defendant was delivering the drug to Shan King Estate, there is no way that he would reserve 10 per cent of the drug for his own consumption. I reject the defendant’s claim that he intended to consume 10 per cent of the cocaine seized. That said, I shall adopt 8 years’ imprisonment as the starting point.

The defendant is entitled to one-third reduction for his guilty plea. That would bring his sentence down to 5 years and 4 months, ie, 64 months.

Apart from the guilty plea of the defendant, there is no other valid mitigating factor which can further entitle the defendant to any reduction of sentence. The letter to the Department of Health was dated 24 January 2017, that was after the defendant’s arrest in relation to this case. I do not think a letter like this would assist the defendant in his sentence.

For the reasons given, I sentence the defendant to 5 years and 4 months’ imprisonment.