HKSAR v. Wu Pak San

HCCC 267/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 267 OF 2016

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

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

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

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

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

Background and the facts

The defendant was originally committed to the Court of First Instance for trial, in respect of one count of trafficking in a dangerous drug.

At the pre-trial review held on 7 September 2017, Mr Chan Siu-ming, who acted for the defendant, confirmed that the defendant would plead guilty to the count. The original trial dates were therefore vacated, and the case was brought forward to this afternoon for plea and sentence.

The defendant has now pleaded guilty to the count, and admitted the Summary of Facts.

Briefly, on the night of 9 November 2015, the defendant was intercepted at a police roadblock in Mong Kok, while he was driving a private car. Also present on board the car was a female who was then sitting at the front passenger seat. As a result of a search conducted on the car, 12 plastic bags containing a total of 164.6 grammes of a crystalline solid containing 159.5 grammes of methamphetamine hydrochloride, which is commonly known as “Ice”, were found under the carpet of the driver’s seat.

The defendant was then arrested, and under caution, he claimed that the drugs were for his own consumption.

Later that night, the defendant was taken back to the police station, and upon a body search conducted on him, another plastic bag containing 1.35 grams of a crystalline solid containing 1.31 grammes of methamphetamine hydrochloride was found in his left sock.

The total amount of drugs found in this case was 165.95 grammes of a crystalline solid containing 160.81 grammes of methamphetamine hydrochloride.

The defendant also attended a video-recorded interview with the police at the station, during which he claimed, inter alia, that all the drugs were for his own consumption, and that he had purchased them that afternoon from “Ah Wai”, whom he met in a games centre after he had won some money there. He said he had paid $14,000 for the drugs.

He hid the drugs under the carpet and the sample given to him in his sock. He then picked up the female for dinner in the car which he had borrowed from a friend.

The Defendant’s Background and Mitigation

The defendant is aged 37 and he has attained secondary level education. The defendant was unemployed at the time of his arrest. He has got three previous criminal convictions, but not any of those was drug-related.

In mitigation, Mr Chan submitted that the most powerful mitigation is the plea of the defendant, and that he is now truly remorseful, as he has a very supportive family. Further, Mr Chan submitted that the defendant had used the money he won at the games centre to purchase the drugs, and he intended to keep part of the drugs, said to be about 20 grammes, for his own consumption, and he would use part of the drugs for trafficking purposes.

On hearing that, I told Mr Chan that at that stage, and based on the matters disclosed in the Summary of Facts, I was not prepared to accept that the defendant would have any significant portion of the drugs for his own consumption.

I then asked Mr Chan if there would be further evidence adduced before me to support this claim, or if there would be further submissions made. Mr Chan replied that there would not be any further evidence adduced, but he added that the defendant’s urine test was positive to drugs when he was examined when he was first sent to Lai Chi Kok Reception Centre.

However, as accepted by Mr Chan, that factor alone is not determinative of whether the defendant had any significant portion of the drugs in question for his own use.

Tariffs

The revised tariffs for trafficking in “Ice” were laid down in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For trafficking between 70 and 300 grammes, a term of imprisonment of 11 to 15 years is called for.

Sentencing in this case

Having considered the amount of “Ice” involved and the facts of this case, I am going to adopt a starting point of 12 and a half years, that is, 150 months. For the following reasons, I completely reject the claim made by the defendant that any significant part of the drugs would be for his own consumption.

1. According to the admitted Summary of Facts, the defendant was stopped at around 10 pm on the day in question. If the defendant had, as he claimed, purchased the drugs earlier that afternoon, it would have been natural for him to bring the drugs back home for proper storage before going anywhere. Instead, he was stopped with a female on board a car, which he had borrowed from a friend. And according to the defendant, the female was picked up by him, and he was then driving the female to have dinner. In other words, what the defendant was saying was that he would leave the drugs which were worth some tens of thousands of dollars in the car while the two of them went for dinner. Without any further evidence, and based on the facts before me, I do not believe that such was the case;

2. The drugs were packed in different plastic bags. Some were larger packs, some were smaller. If the drugs had been purchased by the defendant in one go, I do not see why there would have been the need to so package the drugs. On the facts admitted, I am sure that the different bags of drugs were for delivery to others, rather than having part of it for the defendant’s own consumption;

3. According to the defendant, he won the money at a games centre, most of which he eventually spent on drugs, and then coincidentally, he met someone at the centre who would be able to provide him with such a large amount of drugs within a short notice. These were highly improbable, to say the least, and I do not accept that such was what happened;

4. The defendant said at the video-recorded interview that he had kept the sample given to him in one of his socks. If he had required a sample, it would have meant that this was not a trusted drug-dealer. If so, I do not believe that the defendant would spend so much money on a supplier with whom he was not familiar, to purchase a large amount of drugs on that day. Again, I find this to be wholly untrue;

5. And finally, the estimated street value of the drugs was almost 50,000. I do not believe that the defendant would be able to get them at 14,000, which was only about one quarter of the estimated value. In any event, the defendant was unemployed at the time, and even assuming that he had just used 14,000 for purchasing the drugs in question, which I do not believe to be the case, he would not have the means to use such a large amount of money on the drugs. Without any evidence and based on the facts admitted, I reject the claim that the defendant had bought the drugs with $14,000 on the day in question, intending to keep part of it for his own use.

In short, I do not consider the defendant to be entitled to any reduction because of this claim for self-consumption.

Of course, even if it might be the case that the defendant would have a small portion of the drugs for his own use, as pointed out in the case of HKSAR v Wong Suet Hau, simple possession of a dangerous drug is itself an offence which would call for a term of imprisonment.

Therefore, even assuming that there might be a small amount of the drugs in question which the defendant kept for his own consumption, that would not affect the sentence in this case in any material way. Hence, other than the defendant’s plea, there is nothing in this case which would warrant any discount in sentence.

150 reduced by one-third is 100 months’ imprisonment. I therefore order that the defendant is to serve a term of 100 months, that is, 8 years and 4 months in respect of the count of trafficking in a dangerous drug to which he pleaded guilty.