HKSAR v. Wong Hon Man, Leo

HCCC 111/2018

[2018] HKCFI 1773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 111 OF 2018

-----------------

------------------

---------------------------------------------

Transcript of the Audio Recording

of the Sentence in the above Case

---------------------------------------------

COURT:

The defendant had pleaded guilty before a magistrate to two charges of trafficking in a dangerous drug and was committed to the Court of First Instance for sentence.

In sentencing, I have considered the whole circumstances of the case including its nature and facts, in particular the type and quantity of the dangerous drug involved, personal background of the defendant, and mitigation put forward on his behalf.

The facts of the case may be summarised as follows:

The defendant and a woman were stopped by police officers inside a residential building. Upon search, officers found inside a paper bag the defendant was holding two transparent resealable plastic bags containing a total of 1,003 grammes of a crystalline solid containing 1,003 grammes of methamphetamine hydrochloride. Under caution the defendant admitted trafficking in the drug.

Inside the flat the defendant was about to enter the following items were found on the table: a plastic bag containing 199 grammes of a crystalline solid containing 169 grammes of methamphetamine hydrochloride; a piece of foil paper containing 0.18 grammes of a crystalline solid containing 0.18 grammes of methamphetamine hydrochloride and three pots capable of being used to inhale drugs. The defendant said under caution that the drug put on the table was for his own consumption and the pots were for him to inhale drugs.

The police also found inside the flat items including two electronic scales, one sealing machine, 226 empty plastic bags and some mobile phones.

In a subsequent interview, the defendant said he picked up a paper bag put near a rubbish bin in a shopping mall and found the dangerous drug which he was later holding at the time of arrest. He intended to keep the drug for selling as well as for his own consumption. When he was going home with his girlfriend, he was arrested. The drug inside the flat had been bought by him a few months ago. He had been taking “Ice” on a daily basis as a painkiller as he is suffering from cancer. He had been self-employed, earning around $10,000 a month, but was out of employment after discharge from prison.

I was told that the defendant is 39 years of age. He received education up to Form 3 and has since then been self-employed repairing mobile phones. He was living with the woman who was with him when he was arrested. He is indeed suffering from neurological problem, not cancer, as he said during the interview and when during taking of the antecedent statement, and this requires regular medical follow-up.

The defendant does not have a clear record. He had been convicted of the offence of trafficking in dangerous drugs. The first such conviction was in 2005 for which he was sentenced to 18 months’ imprisonment. He was then convicted twice for this offence in 2012 and was sentenced to a total of 7 years and 4 months’ imprisonment. In 2017, he was convicted for possession of dangerous drug and was sent to DATC. He committed the present offence when he was on bail for that offence. He had also been convicted for the offence of possession of dangerous drugs on several other occasions. The other offences he had committed include robbery, aiding and abetting money laundering, conspiracy to defraud and transferring of travel document.

Learned counsel for defence, Mr Ng, urged the court to take into account that the defendant pleaded guilty at the earliest opportunity. He said the defendant is now remorseful and determined to turn over a new leaf. He asked for leniency and said the defendant would become a good husband upon release. A letter of the defendant was produced in which he expresses his remorse.

Mr Ng also submitted that it was the intention of the defendant to retain a little portion of the “Ice” found inside the flat for his own consumption.

Despite the defendant is convicted of two charges of trafficking, in the circumstances of the case I am of the view that it is appropriate for the purpose of sentencing to take into account the whole quantity of the dangerous drugs seized. The narcotic content of the whole quantity was 1,172.18 grammes.

The Court of Appeal held in AG v Tam Yi Chun CACC 524/2011 that in the case of trafficking in “Ice” where the narcotic content was over 600 grammes, the tariff in Abdallah CACC 304/2008 is applicable. In Abdallah, it was held that if the narcotic content is between 600 and 1,200 grammes a sentence of 20 to 23 years should be considered. I have to bear in mind the danger of mathematical progression causing injustice; just by taking into account the narcotic content, an overall starting point of around 22 years and 9 months would have been appropriate.

The defendant claimed that part of the dangerous drug was for his own consumption. In this connection, I have regard to HKSAR v Wong Suet Hau [2002] 2 HKLRD 1121 and HKSAR v Tan Xiu Yun [2015] 5 HKLRD 872, as well as the following matters: the defendant’s first response when the drug inside the flat was found; the defendant’s previous record; and the pots found inside the flat could be used for drug consumption. In all the circumstances, I am prepared to accept that a little portion of the dangerous drug found on the table would be intended for own consumption by the defendant. However, I have to take into account that even for the offence of possession of dangerous drug, a sentence of custodial nature would be imposed having regard to the quantity asserted.

At the same time, my assessment is that the latent risk was very high. In any case, even if the “Ice” intended for self-consumption was of a quantity so that the quantity intended for trafficking was reduced to 1 kilogramme, which is an extent not suggested by counsel and in any case I will not accept, according to the tariff a starting point of 22 years would have been attracted.

Having regard to the case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1116, HKSAR v Tam Ling Yuen CACC 159/2015 and the more recent Court of Appeal decision in HKSAR v Yeung Shek Yung CACC 314/2016, in my judgment taking into account an assertion of self-consumption a notional starting point of 22 years and 3 months is appropriate.

Moreover, I have to take into account that this was the fourth conviction of the defendant for the offence of trafficking in dangerous drug.

Having regard to HKSAR v Wong Yun Fat CACC 180/2016, I also have to take into account that the defendant committed the present offence, a serious offence of trafficking when he was on bail for an offence of possession of dangerous drug.

I am duty bound to enhance the sentence by reason of the previous record and committing a further offence whilst on bail. At the same time, I remind myself of the risk of excessive enhancement. In my judgment, it is appropriate in the circumstances of the case to enhance the starting point for these reasons by 15 months. All in all, I adopt an ultimate starting point of 23½ years for each charge.

The defendant pleaded guilty before a magistrate and for this reason the defendant is entitled to a one-third discount. In all the circumstances, having considered mitigation submission, I am of the view that this is the extent of discount the defendant is entitled to.

The defendant please stand up. For the reasons I have said, I sentence you to an imprisonment term of 15 years and 8 months for each charge. These sentences are to run concurrently. Therefore, you are to serve a total sentence of 15 years and 8 months for the two charges.