HKSAR v. Wong Chun Ping

HCCC 340/2017

[2018] HKCFI 1202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 340 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 11 September 2017, Mr Wong Chun-ping was committed to the High Court by a magistrate on three charges.

The charges upon which he was committed are as follows, Charge 1, unlawful trafficking in dangerous drugs on 18 November 2016, outside Lok On House, Tsz Lok Estate, Wong Tai Sin, in Kowloon. The amount of drugs involved in that was 10.37 grammes of a solid containing 9.04 grammes of methamphetamine hydrochloride.

Charge 2 is unlawful trafficking in dangerous drugs on the same date, but at Room 2413 in Lok On House. The quantity of the drugs, the subject of the charge is 193.27 grammes of a solid containing 172.53 grammes of methamphetamine hydrochloride.

Charge 3 alleges possession of dangerous drugs at the same address in Charge 2, same date. The drugs involved 8.23 grammes of vegetable matter containing 0.27 grammes of tetrahydrocannabinol, a small amount of methamphetamine, 3.06 grammes of cannabis in herbal form, 5.18 grammes of a solid containing traces of methamphetamine and 1.74 grammes of a mixture containing 1.23 grammes of heroin hydrochloride.

The facts that gave rise to these charges are that on 18 November 2016, at 6.24 pm, Mr Wong was found by the police coming out of Lok On House, Tsz Lok Estate, Wong Tai Sin in Kowloon. He was intercepted, he was searched, inside the waistband of his underpants, dangerous drugs were found as follows, one paper packet contained 6.98 grammes of a solid containing 6.63 grammes of methamphetamine hydrochloride; two tissue paper packets containing two plastic bags containing 3.39 grammes of a crystalline solid containing 3.21 grammes of methamphetamine hydrochloride.

In the course of the search of Mr Wong by the police, they found him in possession of three mobile phones, 12,604-odd renminbi, and HK$7,111-odd. He was arrested and remained silent following a caution.

He did however indicate that he was unwell, and he was sent to hospital. In the meantime, police officers searched the premises mentioned in Charges 2 and 3 of the charge sheet. The premises which were searched were occupied by the mother of Mr Wong and Mr Wong himself. They searched his room and the items which are the subject of Charges 2 and 3 were found inside Mr Wong’s room. For the purpose of sentence, the precise location of the various items is of no practical significance.

Some time later, Mr Wong underwent a video-recorded interview under caution. He made admissions about the possession of the drugs involved, but would not discuss the issue of the purpose of that possession. He declined to answer questions about the possession of the money in cash seized from him.

The retail value of the drugs seized from Mr Wong is admitted as follows. Methamphetamine and methamphetamine hydrochloride, $69,955; heroin hydrochloride, $1,223; cannabis in herbal form, $842.

By his plea of guilty before the magistrate, Mr Wong has admitted that he was unlawfully trafficking in the drugs, the subject of Charges 1 and 2.

In addition to that, through his counsel, Mr Woon, he accepts that he is carrying the drugs as he left Lok On House, and his storage of the drugs, the subject of Charge 2, were acts of unlawful trafficking.

He is aged 56, and prior to his arrest, he was partly unemployed and partly employed. He worked with his sister in a vegetable store in the markets. He was in receipt of a disability allowance of something of the order of $3,500. He was educated up to Primary 6 level. He lived with his mother and sister at the address revealed in Charge 2 on the charge sheet. Perhaps the most significant fact is that he was at the time an addict in relation to “Ice”.

His mother, with whom he was living, died while he was in custody for these offences, and that is a regrettable thing.

He has two children, who are in foster care, and although nobody would ever characterize him as a perfect father, he has done the best he can in those circumstances, for which he deserves credit.

He has expressed through his counsel and through a letter from the Hong Kong Christian Kun Sun Association Limited, an organisation well-known to this court, that he is deeply remorseful for what he has done, and hopefully, with their assistance, will take the time in prison, which I am unfortunately going to have to impose a long sentence, he will take that time to reform himself and come out of prison a better person. This court sincerely hopes that that object is achieved.

He has a criminal record, which commenced in 1980, a number of those charges, indeed, the majority of those charges are not relevant for sentencing purposes. He has three convictions involving dangerous drugs, including a conviction in 2001 for trafficking in a dangerous drug, for which he received a sentence of 8 years. His most recent conviction occurred in 2015, which was for possession of a dangerous drug, for which he received a sentence of 16 months’ imprisonment.

It would appear at the time of the commission of the offence, the subject of these charges, he had been out of prison for something of the order of 11 months.

The community of Hong Kong and as a result, the courts of Hong Kong, have, for many years, taken a severe view of drug trafficking, particularly in relation to “Ice”. This drug has terrible consequences for an individual. If anybody in this courtroom can attest to that, it is the defendant himself. “Ice” is savagely addictive. Ridding oneself of that addiction is, to say the very least, an arduous process, and sadly, history demonstrates that attempts to rid oneself of an addiction to “Ice” is fraught with instances of disappointment.

However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs. Further, the conduct of persons affected by “Ice” both in private and perhaps more pertinently in public, can be quite dangerous.

The view that the community and the courts take of “Ice” is reflected in the nature of the sentences, and the level of those sentences traditionally imposed for drug trafficking. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs the subject of this charge.

In relation to “Ice”, the guidelines were restated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The guidelines suggest for the quantity in the present case, is in relation to “Ice”, for up to 10 grammes, 3 to 7 years’ imprisonment. And in relation to quantities between 70 grammes and 300 grammes, 10 to 14 years’ imprisonment.

In relation to possession of dangerous drugs, there are no specific guidelines. Still less are there guidelines where, as here, there is a mixture of various dangerous drugs ranging from cannabis and its derivatives to heroin hydrochloride. The amounts are quite small, and in terms of seriousness, pale into insignificance when compared with the inevitable sentences for Charges 1 and 2. There is a conceivable latent risk in relation to possession of the drugs the subject of Charge 3, but in the circumstances of this case, I judge that the risk to be so minimal as to not justify any upward enhancement of the sentence I would otherwise impose on this Charge.

What I propose to do is, in the sense, a roll-up sentence in relation to Charge 3, and make it concurrent with the sentences I have proposed to impose on Charges 1 and 2. On that basis, the sentence I will impose in relation to Charge 3 is imprisonment for 3 months.

In relation to Charges 1 and 2, the total quantity for the purpose of sentencing is 182.37 grammes. While it is a reasonable inference, the purpose of Mr Wong carrying the “Ice” when he was intercepted by the police was that it was for the purpose of disposing of the quantity in his possession for money, it is an equally reasonable inference quantity found in his residence for the purpose of storage was for the future disposal of money. The difference in sentencing terms between the two activities is for all purposes immaterial. They are closely connected in time.

What I intend to do to achieve an overall sentence by imposing what is a proper sentence in each Charge, and making the sentence I will shortly impose with Charge 1 partly consecutive to the sentence I intend to impose in relation to Charge 2.

The object of this is to sentence upon the premise that there was one charge for the total quantity of “Ice” involved. The alternative, that is, imposing a proper sentence for Charge 1 and simply making the sentence for Charge 2 consecutive is, in my judgment, inconsistent with the just disposition of this case.

The sentence I would have imposed after trial for Charge 1 is 6 years’ imprisonment, the starting point for Charge 2 is 12 years’ imprisonment. Clearly, the major relevant mitigation in this case is the plea of guilty which for all practical purposes, was made at the earliest possible moment.

Mr Wong has accepted full responsibility for his conduct, and the necessary grief and inconvenience that must cause his family. And I should add to those people who consume the “Ice” that he was selling.

Sadly, given the situation of Mr Wong, I can see no proper basis for the light at the end of what is I am very sorry to say, a dark and long tunnel, and it follows that there is nothing else I can do to otherwise reduce the sentences that must be imposed in this case.

In the adjustment as between Count 1 and Count 2, I have taken into account that 20 grammes of the quantity in Charge 2 was for personal consumption.

Wong Chun-ping, would you please stand up?

Combining justice and mercy as best I can, the sentences I impose upon you are as follows. Charge 1, 4 years’ imprisonment; Charge 2, 8 years’ imprisonment. I order that 3 months of the sentence on Charge 1 to run consecutive to the sentence imposed on Charge 2, and the balance to be served concurrently; Charge 3, 3 months’ imprisonment, and that is to be served concurrently with Charges 1 and 2.

The overall sentence I impose upon you is therefore 8 years and 3 months.