HKSAR v. Wong Ming Chun and Another

DCCC 995/ 2017

[2018] HKDC 657

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 995 OF 2017

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REASONS FOR SENTENCE

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1.The second and third defendants pleaded guilty to one count of “Trafficking in dangerous drugs”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (the second charge), one count of “Possession of Part I poison”, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap. 138 (the third charge) and one count of “Possession of apparatuses fit and intended of inhalation of a dangerous drug”, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap. 134 (the fourth charge).

Facts

2.On 3 August 2017, the police received a false report from a Ms Chan and as a result of which they went to Room 2902, Rosedale Hotel, No. 8 Shelter Street, Causeway Bay, for investigation.  At that time, the second and the third defendants were inside the room. 

3.Upon search, the following were found on a table inside the room:

(i) one plastic bag containing 0.07 grammes of powder cocaine;

(ii) nine plastic bags containing a total of 4.54 grammes of crystalline solid containing 3.51 grammes of methamphetamine hydrochloride;

(iii) one plastic bag containing two tablets of sildenafil;

(iv) one broken glass tube with traces of ice;

(v) one glass tube with a bulb shaped end containing 0.04 gramme of solid containing ice;

(vi) one glass tube with bulb shaped end containing 0.01 gramme of a solid containing ice;

(vii) one glass vial with two outlets containing 0.12 gramme of a solid containing 0.12 gramme of ice;

(viii) one rubber tube;

(ix) one plastic bottle with two opening on the cap inserted with a straw;

(x) three lighters;

(xi) one flame gun;

(xii) one pair of scissors; and

(xiii) two plastic cards.

4.The hotel room was rented by the third defendant the day before.  DNA examination shows the second and third defendants came into contact with the plastic bottle with two opening on the cap. 

5.Under caution, the second and third defendants made the following admissions:

(i) both defendants were drug users and would occasionally consume drugs together;

(ii) Ms Chan was girlfriend of the third defendant;

(iii) they intended to consume ice together with Ms Chan;

(iv) both defendants would each take the viagra;

(v) the second defendant was responsible for bringing the drugs while the third defendant was responsible for renting the room and brining in inhaling bottles and equipment;

(vi) the second defendant bought the ice and viagra for HK$1,000 and brought them to the hotel. The second defendant also brought one inhaling bottle with two opening,

(vii) by the time the second defendant arrived at the room, the third defendant and Ms Chan were already there,

(viii) Ms Chan went to the washroom and soon left the room. Before the two defendants had the chance to begin consuming the drugs, the police arrived.

Mitigation

6.The second defendant is aged 30, married with 2 daughters.  His wife has already left him.  His daughters are taken care of by his parents.

7.The second defendant has 14 previous conviction records, 1 relates to trafficking in dangerous drug and 5 others are drugs related.  His last conviction was on 3 January 2017 for possession of dangerous drug.  Prior to the arrest, he had been working as a hair technician and car cleaner.

8.In mitigation, it was submitted that the second defendant was a drug addict.  The drugs found were for his own consumption and consumption by the third defendant and his girlfriend Ms Chan.  The court was urged to adjust the sentence to reflect the fact that the drugs were for social trafficking and self-consumption.  The court was also urged to impose lenient and concurrent sentences on the second defendant so that he could take care of his two daughters as soon as possible.

9.The third defendant is aged 43, divorced with one son but he had no contact with the son and the ex-wife. His parents passed away and he had no contact with his siblings.

10.The third defendant has 11 previous conviction records, 3 relate to trafficking in dangerous drug and 5 others are also dangerous drug related.  His last conviction was on 13 February 2014 for possession of dangerous drug and equipment fit for inhaling.  Prior to the arrest, he was conducting business of sale and purchase of second hand goods by way of an internet shop with his partner.  He could earn $30,000 to $40,000 per month if the business was good. He had no fixed abode and prior to the arrest, he rented the hotel room intending to stay there with his girlfriend for a few days.

11.In mitigation, it was submitted that the third defendant was a deep rooted drug addict.  Prior to the offence, he was contacted by the second defendant who was just released from DATC.  The second defendant suggested bringing in some drugs for sharing.  The court was urged to accept that the drugs were for consumption by the second and the third defendant together with the girlfriend and the third defendant be sentenced on the basis of social trafficking.  It was further submitted that concurrent sentences should be imposed in the circumstances of this case.

Sentence

12.Although both defendants have previous conviction records for trafficking in dangerous drugs, those convictions were some time ago.  Therefore, when considering sentence, I do not propose to enhance the sentence because of the conviction records.

13.The drugs involved in the second charge are 0.07 gramme of a powder containing cocaine and a total of 3.63 grammes of methamphetamine hydrochloride.  The Court of Appeal has laid down sentencing guidelines for trafficking in heroin, which is applicable to cocaine (R v Lau Tak Ming [1990] 2 HKLR 370) and trafficking in methamphetamine hydrochloride (AG v Ching Kwok Hung [1991] 2 HKLR 125).  According to the guidelines, for trafficking in 0.07 grammes of cocaine, the appropriate starting point is 18 months.  For trafficking in 3.63 grammes of ice, the appropriate starting point is 52 months.

14.In cases involving trafficking in more than one type of drugs, the Court of Appeal has set out two different approaches, namely the combined approach and the individual approach (see HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367).  If the individual approach is adopted in this case, the overall starting point would be 70 months, which is much higher than the starting point for the whole quantity of the two drugs if the batch merely contained ice.  Therefore, I will adopt the combined approach in determining the appropriate starting point.

15.In this case, cocaine and ice are involved.  Given ice is the more serious drug in terms of potency and quantity, I will refer to the sentencing tariff for ice.  I consider the appropriate starting point is 55 months’ imprisonment.

16.Regarding the claim for self-consumption, I have reminded myself the relevant principles in HKSAR v Wong Suet Hau & anor [2002] 1 HKLRD 69 and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.  In the former case, it was held by the Court of Appeal that where it was accepted that a significant proportion of the drugs were for the defendant’s own consumption, the court should adjust the sentence to reflect the fact that not all the drugs were for trafficking. However, it was not necessary for the sentencing judge to specify the relative amounts or proportions.  In the latter case, the Court of Appeal held that a discount between 10% and 25% from the basic starting point would be appropriate in cases where all or part of the drugs were intended for trafficker’s own consumption.  In the present case, there is no evidence to rebut the allegation of self-consumption.  It is also clear from the facts that the both defendants had in their possession apparatuses for consuming drugs.  In the circumstances, I am prepared to accept that part of the drug was for his own consumption and therefore reduce the starting point by 13 months to reflect the discount for self-consumption.  Since both defendants pleaded guilty to the charge, they are entitled to the usual 1/3 discount for the plea.  The sentence for the second charge is therefore reduced to 28 months’ imprisonment. 

17.For the third charge, only 2 tablets of sildenafil were involved.  I consider the appropriate starting point is 3 days’ imprisonment.  Given the guilty plea, it is reduced to 2 days’ imprisonment.

18.For the fourth charge, I consider the appropriate starting point is 6 months’ imprisonment.  Given their guilty plea, the sentence is reduced to 4 months’ imprisonment.

19.Given that all offences arose from the same incident and taking into consideration the totality principle, I am satisfied that the sentences for all three offences should be served concurrently with each other.  I therefore sentence each of the second and third defendant to 28 months’ imprisonment.