HKSAR v. Wong Kin Wai

DCCC 36/2018

[2018] HKDC 557

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 36 OF 2018

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REASONS FOR SENTENCE

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1.This is a case of stop and search by the police leading to the discovery of drugs.

2.The defendant pleaded guilty to one count of trafficking.  The drugs involved are 6.23 grammes of a mixture containing 5.04 grammes of heroin hydrochloride and 0.29 grammes of a solid containing heroin hydrochloride

3.In the evening on the day of offence, 19 October 2017, a patrolling officer stopped the defendant near the junction of Nam Cheong Street and Tung Chau Street, Sham Shui Po, and found in the bag the defendant was carrying the first part of the drugs in this case, i.e. 6.23 grammes, which were put in 40 separate packets wrapped in purple wrappers in a resealable bag.  The rest of the drugs, i.e. 0.29 grammes, was later retrieved from his excrement after he was taken into custody.  Also found on him was 3,000-plus cash.

4.At the time of his arrest, the defendant told the officer that, I quote, “I only sell drugs for others because I am jobless.  Please do not arrest me.”  In a subsequent interview with the police, the defendant elaborated his trafficking story further by saying that he was there to sell drugs.  He worked for a man who paid him $10 for each packet sold.  $1,380 out of the cash found on him was the proceeds from drug sales.  He had already sold ten packets before he was arrested.

5.Two days after he was taken into custody, while in Lai Chi Kok Reception Centre, CSD officers discovered two more packets of drugs in his excrement and informed the police.  The defendant told the CSD officers that he had swallowed the drugs when he was stopped by the police.

6.The defendant, aged 48, a divorcee, has amassed 5 previous convictions over the past ten years.  All of them are theft except the very first one back in 2007, which is a drug possession offence, and on that occasion he was dealt with by way of a fine.  He has a son, a 19-year-old, who lives with his mother. 

7.The court heard, as a result of his mother’s death two years ago, the defendant had to give up their housing unit to the government and the defendant has been sleeping rough ever since.  The defendant used to be a kitchen worker but at the time of offence he was jobless and was relying on government allowances in the sum of $1,800 per month.  In his letter to the court, he expressed remorse for what he had done and promised he would try to learn as much as he can and turn over a new leaf after release from prison.

8.There are sentencing guidelines for trafficking in this type of drug. For trafficking up to 10 grammes, a term of 2 to 5 years is to be considered. I would like to make it clear that the additional drug found two days later did not in fact add anything in terms of narcotic content for the purpose of sentencing for trafficking.

9.For the amount he admitted trafficking, i.e. 5.04 grammes, I take 3½ years as a starting point.  The only substantial mitigation in this case is the defendant’s timely plea of guilty.  Giving the usual one-third discount, the starting point is reduced to 2 years and 4 months.  There being no reason for any further reduction in sentence, the defendant is therefore sentenced to 28 months’ imprisonment.