HKSAR v. Wong Yu Wing

HCCC 375/2017

[2018] HKCFI 1679

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 375 OF 2017

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

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COURT: Defendant was convicted after trial of one count of trafficking in dangerous drugs.

Particulars are that he, on 22 February 2017, at Room D - Unit D - 3rd Floor, Pak Far Building, 53 Shek Kip Mei Street, unlawfully trafficked in the dangerous drugs of methamphetamine hydrochloride, commonly known as “Ice”, heroin, ketamine and cocaine.

The exact quantity of narcotics will be dealt with below.

Outline of Facts

Police officers entered Room D on 22 February. They found the defendant, together with another male, inside. The men were put under police control and a search was conducted inside the room by the exhibits officer, and the items below were found: three transparent resealable plastic bags, which were later found to contain a total of 19 grammes of a crystalline solid containing 17.8 grammes of methamphetamine hydrochloride; one plastic bag, which was later found to contain 2.53 grammes of a solid containing 1.69 grammes of ketamine; one plastic bag, which was later found to contain 0.26 grammes of a solid containing 0.23 grammes of cocaine; and one plastic bag containing nine pellets consisting of plastic wrappings which were later found to contain a total of 3.75 grammes of a mixture containing 3.18 grammes of heroin hydrochloride, a salt of heroin.

These are the dangerous drugs particularised in the count.

The defendant was arrested. He admitted under caution that the drugs were for his self-consumption and that he would sell them to others if they wanted it “有人要就讓俾人”.

In the subsequent video-recorded interview, the defendant explained that when he said “讓俾人”, what he meant was that he would share the drugs with others without charging them money.

The issue at trial was whether the prosecution can prove beyond reasonable doubt that the defendant did make those admissions, and if he did, that the admissions are true.

The jury returned a guilty verdict by a five/two majority.

Previous Convictions

The defendant has no previous similar convictions. He does have one conviction for smoking or injecting a dangerous drug and two convictions for simple possession of dangerous drugs dating back to 1994, 1996 and 2011 respectively. There are also some other minor offences.

I do not find him a persistent offender and will not enhance the sentence on this basis.

In mitigation, I heard the defendant is 45 years old. He is married, but in the process of divorcing his missing wife. His girlfriend, Miss Lam, gave evidence at trial on behalf of the defendant, and we know that they are going to get married once the divorce proceedings are completed.

We have also heard from Pastor Dennis Hui, who told us that the defendant is someone who is always willing to help others. Photographs of the defendant taking part in different volunteering services were produced at trial.

Miss Lam pointed out the defendant had been working since the 1990s. He is qualified to work in plumbing and electrical works and other construction site or decoration-related work. He had been working in a hospital from 2014 until 2017. The defendant did not give up(?) after his present remand. He took up a part-time job working as a cleaner at the Airport Exhibition Hall earning 10-odd thousand dollars. He is a hardworking person.

Sentence

There are four different types of dangerous drugs involved in this case.

“Ice”

The sentencing guidelines for trafficking in methamphetamine hydrochloride, otherwise known as “Ice”, is found in the case of HKSAR v Tam Yi Chun. For a quantity of between 10 and 70 grammes, the range of sentence is 7 to 11 years’ imprisonment.

For the narcotic content of 17.8 grammes of “Ice”, an arithmetical application of the tariff would lead to a starting point of slightly more than 90 months’ imprisonment.

Heroin

The sentencing guidelines for trafficking in heroin hydrochloride is found in the case of R v Lau Tak Ming. For a quantity of up to 10 grammes, the range of sentence is 2 to 5 years’ imprisonment.

For the narcotic content of 3.18 grammes of heroin hydrochloride, an arithmetical application of the tariff would lead to a starting point of slightly more than 35 months’ imprisonment.

Cocaine

Sentencing guidelines for trafficking in heroin as set down in R v Lau Tak Ming was held to apply to trafficking in cocaine as well in the case of Attorney-General v Pedro Nel Rojas. Therefore, the tariff sentence for trafficking in cocaine of a quantity of up to 10 grammes is also that of 2 to 5 years’ imprisonment.

For the narcotic content of 0.23 grammes of cocaine, an arithmetical application of the tariff will lead to a starting point of slightly more than 24.5 months’ imprisonment.

Ketamine

Sentencing guidelines for trafficking in ketamine are found in the case of Secretary for Justice v Hiu Siew Cheng. For over 1 gramme to 10 grammes, the range of sentence is 2 to 4 years’ imprisonment.

For the narcotic content of 1.69 grammes of ketamine, an arithmetical application of the tariff sentence will lead to a starting point of slightly more than 25 months’ imprisonment.

I will adopt a combined approach when deciding on a sentence.

The combined narcotic weight of all four types of drugs is 22.9 grammes. The “Ice” makes up 77.73 per cent of that combined weight; the heroin, 13.89 per cent; the ketamine, 7.38 per cent; and the cocaine, 1 per cent.

Because of the narcotic potency of “Ice” and it taking up 77.73 per cent of the combined weight, I find that the sentence for “Ice” should form the basis of the combined approach, which means a primary starting point of 90 months’ imprisonment.

I turn now to consider how the remaining narcotic content should affect this primary starting point.

A 35-month sentence for heroin is the equivalent of close to zero grammes of “Ice”, so if this amount of “Ice” is added to the 17.8 grammes, it would have very little impact on the primary starting point.

Likewise for the sentences of 24.5 and 25 months’ imprisonment for the cocaine and ketamine, if they are each converted into “Ice”, the quantity will be so small that it would not have a significant impact on the 90-month primary starting point for the 17.8 grammes of “Ice”.

That being the case, I will adopt a starting point of 90 months’ imprisonment for all the narcotics.

I will now proceed to apply the ratio test and the absurdity test on this starting point.

If the ratio test is applied, the total sentence is 77 months’ imprisonment. Since the trafficking in 17.8 grammes of “Ice” in itself would lead to a starting point of 90 months’ imprisonment, the figure arrived at via the ratio test is not applicable in the present case.

The absurdity test

If all the seized drugs were the more serious “Ice”, the total quantity of 22.9 grammes would lead to a starting point of between 93 and 94 months’ imprisonment. The proposed primary starting point does not fall foul of this test.

I do, therefore, adopt a starting point of 90 months’ imprisonment, and I proceed to deal with the self‑consumption discount.

In the case of HKSAR v Liu Ming Sze the Court of Appeal gave a detailed analysis of previous authorities on discount granted to drug traffickers on the ground of self‑consumption. In gist, the amount of drugs for consumption must be of a significant portion of the drugs the defendant is being sentenced for. If this condition is satisfied, the discount can range from 10 to 25 per cent, subject to the discretion of the sentencing judge after considering all the relevant factors, including the total quantities of the drugs involved, proportion of the drugs intended for self use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organised and premeditated, and the background and criminal record of the defendant.

In the present case, based on the defendant’s admissions in his video-recorded interview, he would sell or share for free the drugs with others.

I find that the defendant’s trafficking was for financial gain, albeit likely to be small. There is some organisation and premeditation in his trafficking as supported by the presence of the electronic scale and the empty plastic bags.

On the other hand, the defendant has previous convictions for possession of dangerous drugs and use of dangerous drugs, and he was tested positive for “Ice” just a few days, on 25 February, after his arrest, when he was detained at Lai Chi Kok Reception Centre.

I find that I am satisfied that the evidence does support that a significant portion of the “Ice” would be for the defendant’s self consumption.

Given the circumstances of the case, especially the presence of the electronic scale and the empty plastic bags, but also taking into consideration the relatively small quantity of heroin, ketamine and cocaine and that the drugs were all found in the defendant’s home, I find that a proper discount is that of 15 per cent.

The discounted sentence is 76.5 months’ imprisonment.

The discount is directly related to the quantity of drugs being trafficked and not to the general circumstances of the commission of the offence.

The enhancement for the aggravating factor, if any, should therefore be applied after the discount for self consumption has been granted. Trafficking in an assortment of dangerous drugs is an aggravating factor. See HKSAR v Lam Cheuk Hei.

And for this factor, given the relatively small quantity of heroin, ketamine and cocaine involved, I will enhance the sentence by 6 months.

I find that the enhanced sentence of 82 months and 15 days’ imprisonment is an appropriate sentence for the defendant’s trafficking of all the dangerous drugs, and he is so sentenced.