HKSAR v. Wong Chi Man

HCCC 401/2017

[2018] HKCFI 784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 401 OF 2017

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

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COURT:

The defendant, Wong Chi-man, was charged with one count of possession of dangerous drug, and one count of trafficking in a dangerous drug contrary to section 8(1)(a) and (2), and 4(1)(a) and (3), respectively, of the Dangerous Drugs Ordinance, Cap 134. The defendant pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The facts disclosed that on 11 April 2017 the defendant was spotted by police acting suspiciously near a female toilet in Kwai Shing West Estate, Kwai Chung. Upon search, the police found a banknote wrapping something suspected to be cocaine, later confirmed to be 1.24 grammes of a solid containing 1.16 grammes of cocaine. Under caution, the defendant said he had just purchased the cocaine for $1,000 from an unknown man for his own use. The defendant asked for a chance.

The defendant was brought back to the Kwai Chung Police Station and upon further search, a grey bag containing seven packets of suspected ‘Ice’ was found tucked in the underpants he was wearing, later confirmed to be 54.3 grammes of a crystalline solid containing 50.2 grammes of ‘Ice’. Under caution, the defendant said that unknown man offered him $2,200 to deliver the dangerous drug to Kwai Shing West Estate. He had checked the packets but he did not know what kind of dangerous drug it was. The defendant was arrested, and he asked for a chance. The police found 10,876.5 cash on the defendant.

The defendant attended a video-recorded interview later. He explained how the unknown man offered him $2,200 to deliver the dangerous drug for him, upon learning that the defendant lived in Kwai Chung. He was given a grey bag containing some dangerous drug which he believed to be ketamine, and he tucked it in his underpants. He was waiting for instructions from that unknown man when he was intercepted by the police. He had not yet received the reward of $2,200. He claimed that the money found on him came from his savings when working as a transportation worker in March.

The estimated street value of the cocaine found was HK$996, and for the ‘Ice’ found, was $15,530.

So those were the facts admitted by the defendant.

Now, it should be noted that the defendant does not maintain that he had mistakenly believed the dangerous drug to be ketamine, after learning that the prosecution would not accept such a claim, and after consultation with his counsel Ms Money Lo, as to the pros and cons of having a Newton inquiry to determine this issue.

Now the defendant’s background and mitigation. The defendant is now 19 years of age; he was 18 at the time of the offence. He’s a first offender. He received education up to Form 4, and had worked as a transportation worker after leaving school. On 8 February this year, 2018, when the case first came before me, Ms Lo informed me then, that the defendant’s father is a warehouse keeper, and his mother works in a kindergarten. The family lives in a public housing estate. The defendant has an elder sister who suffered from heart problems during childhood. The defendant’s parents devoted much time to take care of the sister and to make ends meet, thus not spending as much time as they would have liked with the upbringing of the defendant.

When the defendant was still in primary school, he was noted to be lacking in attentiveness. After assessment by the school social worker, the defendant was found to suffer from lack of attentiveness and self-control. He also had difficulties in reading and writing. It was suggested the defendant should seek psychiatric intervention; his parents arranged for him to consult private doctors at first, but eventually the defendant had to consult the doctors under the Hospital Authority due to financial difficulties. The defendant took medication at first, but he stopped taking the medication or consulting the doctor due to side effects of having headaches after taking the medication. As the defendant lacked the ability to study, he quitted school in 2016 and started to work as a delivery worker. He also mingled with bad peers who took drugs.

Ms Lo submitted that the defendant was frank and cooperative upon his arrest, admitting his guilt at the first available opportunity. The defendant’s parents were shocked and heartbroken to learn of what the defendant had done. Indeed, the defendant’s parents have written to me setting out the family circumstances, and pleading leniency on the defendant’s behalf. Ms Lo submitted that the defendant is remorseful for what he has done; he has learnt to be disciplined and be responsible from his detention. He hopes to take up some sort of training and be able to work after his release.

After hearing that the defendant had a history of consulting psychiatrists and had some problems before, I adjourned the sentence and called for two reports; that is a psychiatrist report and a psychologist report on the defendant.

Now the psychiatric report. According to the psychiatrist, Dr Chow, while the defendant had a history of hyperkinetic disorder and oppositional defiance disorder, his current mental condition is stable without psychiatric disturbance. No psychotic symptoms were elicited.

Now the psychologist report. According to the Clinical Psychologist, Ms Im, the defendant is an immature adolescent with a history of dyslexia, attention deficit hyperactivity disorder, and oppositional defiant disorder. Personality wise, the defendant is impulsive, reckless, and anti-social, with ineffective parental supervision and exposure to negative social influence. The defendant endorsed criminal attitudes, supporting the engagement in illegal activities for a monetary gain. Risk of reoffending for monetary gain is high in the absence of adequate and effective supervision. Psychological treatment on his substance abuse, anti-social personality, criminal attitude, and distant family relationship is strongly recommended to prevent reoffending.

Lifestyle restructuring, facilitating his attainment of gainful employment and development of pro-social support network should be incorporated into his rehabilitation plan.

Ms Yim added a rider that given the defendant’s limited insight into his problems and history of poor compliance to mental health services, his treatment adherence and benefit is uncertain at present.

On the resumed hearing on 15 March this year, Ms Lo confirmed that the defendant agreed with the contents of both reports. Ms Lo urged me to take into account the facts that the defendant did suffer from psychiatric and other problems before, though he is not now psychotic, which played a part in causing him to embrace the delinquency culture and committed the present offences. On 16 March this year, after confirming that the defendant would no longer pursue his claim of mistaken belief, Ms Lo submitted that the defendant was used by others, and he’s now determined to turn a new leaf. Ms Lo asked me to be as lenient as possible.

Now I come to my consideration of the sentence. I will deal with the more serious offence of trafficking in a dangerous drug first. Trafficking in a dangerous drug is a serious offence, on conviction on indictment, a person is liable to a fine of $5 million and to imprisonment for life. The ‘Ice’ involved here is 50.2 grammes, which falls into the 10 to 70 grammes band in the case of HKSAR v Tam Yi Chun, the starting point is one between 7 to 11 years.

When coming to the appropriate starting point, I take into account the quantity of the ‘Ice’ involved, and the role played by the defendant, a courier, and the defendant’s relatively young age, 18 years old. I also take into account the difficulties the defendant faced when he was growing up, and the family circumstances as disclosed by Ms Lo and the two reports I have read. Whilst I cannot impose a light sentence on the defendant because he had been used by others, I will try to be as lenient as possible within the appropriate band.

Having considered all the above that I have mentioned, I am of the view that a starting point of 8 years’ imprisonment is appropriate in the circumstances. The defendant pleaded guilty at the committal stage and is entitled to a full one-third discount, so, after the discount, the sentence will be 5 years and 4 months’ imprisonment.

For the possession of cocaine charge, I am of the view that a starting point of 12 months is appropriate. The defendant also pleaded guilty at the committal stage and is entitled to the full one-third discount, so, after the discount, the sentence for possession of dangerous drug is 8 months’ imprisonment.

I now have to consider the totality.

As the possession of a dangerous drug is a separate, a distinct offence when compared with the trafficking of dangerous drug, the sentences for both should not be completely concurrent, that is, in principle. However, bearing in mind that had the defendant been found guilty of trafficking in 1.16 grammes of cocaine, that quantity, when added to the 50.2 grammes of ‘Ice’ would not have made any difference to the overall sentence, so for this reason I will order both sentences to run concurrently.

So, for the 1st count, possession of dangerous drugs; 8 months’ imprisonment. For Count 2, trafficking in a dangerous drug; 5 years and 4 months’ imprisonment. Both sentences to run concurrently making a total of 5 years and 4 months’ imprisonment.