HKSAR v. Wong Man Hei

DCCC 396/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 396 OF 2017

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REASONS FOR SENTENCE

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1.The defendant in this case was intercepted by the police outside his residence at 10 am on the 8th day of February 2017.  Armed with a previously obtained search warrant, the Police Officers entered into the flat, found inside one pair of leather shoes placed near the entrance with 45 individually packed cocaine in resealable plastic bags.  Inside the room there was also an electronic scale and two bundles of resealable plastic bags.  There were in total 99 resealable plastic bags.

2.The defendant was arrested for trafficking in a dangerous drug.  Initially he stated that it was bought for his own consumption.

3.Under caution in a subsequent video recorded interview, the defendant admitted to have bought the drugs, the electronic scale, the plastic bags a day earlier.  The electronic scale was to be used for weighing the drugs and the plastic bags were to be useful to replace the plastic bag containing the drugs if the original plastic bags were damaged.

4.He also said that he used to be addicted to ketamine, but had quit since and that the drugs found in the unit he had never consumed any of it.

5.Subsequent examination by the government chemist confirmed, of the 45 bags of cocaine, 31 of them contained a total of 5.29 grammes of cocaine.  The remainder 14 plastic bags contained a total of 2.4 grammes of cocaine.

6.Offences of this nature has been considered by the Court of Appeal and we have very clear sentencing guideline on these matters.  In the case of Lau Tak Ming, it was stated that trafficking in heroin up to 10 grammes warrant 2 to 5 years of imprisonment. The Court of Appeal subsequently in Pedro Nel Rojas [1994] 1 HKC 342 stated that the sentencing scale for trafficking in heroin would extend to cocaine.

7.In this case I see no reason which might justify my departure from those sentencing guidelines.  I therefore will adopt 51 months as a starting point.

8.Under caution, initially the defendant stated that it was for his self-consumption.  It was so submitted by his counsel that since he was under pressure because his relative passed away, he intended to buy the dangerous drugs, for self-consumption.  He admitted that part of which he intended to sell.

9.That, in my view, does not accord with the rest of the admitted facts.  If he bought the dangerous drug the day before how did he have the time to separate them?  There were also two kinds of weight in those dangerous drugs.  They were separated in 45 individually packed plastic bags and there was an electronic scale and other unused plastic bags in the premises.

10.I also note that he admitted he had quit his addiction to ketamine since 2013 and that at the time he had no drug addiction.  Of course, according to the Court of Appeal, in a case of trafficking in a dangerous drug, if the court found that part of the drugs were for self-consumption, this court would have the discretion to give a discount of up to 15 to 20 per cent to the starting point.

11.I also note that the Court of Appeal also stated very clearly that it was within the trial court’s discretion and the Court of Appeal would seldom interfere.

12.In the present case, I found the circumstances of supporting the defendant’s contention suspect.  The prosecution saw fit not to raise any objection to this matter. 

13.I would therefore adopt a lower discount of 5 per cent.  To round it up, I will use 48 months as a starting point.

14.I turn to consider other mitigating factors put forward by the defence counsel.

15.The defendant was aged 21 when he committed the crime, but he was no stranger to the courts.  Since 2009, he had been brought to court four times and he has been convicted of six charges.  I also note that in the year 2014 he was convicted of trafficking in a dangerous drug, for which he was sentenced to 2 years’ imprisonment.  In 2016 November, he was convicted of common assault, for which he was sentenced to 4 weeks’ imprisonment. 

16.Despite his relatively young age, with his record, he cannot claim any extra clemency from this court.

17.From mitigation, I also learnt that the defendant had worked as a fitness trainer in a gymnasium since December 2016. He lived with his mother, a factory worker. 

18.From his background, there is really little for me to exercise any further discretion of leniency.  In my view, the only valid mitigating factor is his plea of guilty and he is entitled to the customary one third discount.

19.Therefore, the sentence of 48 months is now reduced to 32 months, to take effect immediately.