HKSAR v. Wong Chun Tat

DCCC 571/2018

[2018] HKDC 1603

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 571 OF 2018

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REASONS FOR SENTENCE

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1.In this case the defendant Wong Chun Tat faces three counts, two of which are a little identical in that they were all related to Trafficking in a Dangerous Drug, contrary to section 4(1)(a) and 3 of the Dangerous Drugs Ordinance. The third count relates to Possession of Dangerous Drugs, contrary to section 8(1)(a) and 2 of the Dangerous Drugs Ordinance.

2.He pleads guilty to all the charges and is convicted upon his plea and admission of facts.  

Summary of Facts

3.The facts revealed that at about 1 am on 7 April 2018, the defendant was stopped by the police for acting suspiciously in Cheung Sha Wan.  Upon search the police found a total of 28 bags containing a total of 6.1 grammes of cocaine.  Subsequent home search the police also found 10 bags of cocaine, containing a total weight of 4.46 grammes of cocaine. 

4.For the cocaine seized in his person and at home, the defendant was charged with the 1st and 2nd count of trafficking. 

5.In addition, the police also found two bags of herbal cannabis, total weight 3.47 grammes and two bags of what is commonly known as ‘Ice’ at the total weight of 2.22 grammes. 

6.Under caution the defendant admitted that the cocaine found on him and in his home were for the purpose of trafficking but in respect of the ‘Ice’ and the cannabis, he did not intend to sell them.  The defendant also admitted that he is addicted to ‘Ice’.  On the strength of his admission, he was charged with possession of the herbal cannabis and the ‘Ice’.  In addition, at his home, the police found an electronic scale and a quantity of resealable plastic bags. Subsequent investigation also revealed that he had traces of ‘Ice’ in his system.

7.The total weight of cocaine found in his person was 6.1 grammes.  The 10 bags of cocaine found in his home weighed 4.46 grammes, making a total of 10.56 grammes of cocaine.  In respect of the herbal cannabis, it was 3.47 grammes and the ‘Ice’, 2.22 grammes.   

8.The offence relating to the trafficking of cocaine is the most serious and I will deal with them first.  The Court of Appeal has repeatedly considered such offences by reason of their rampancy.  Both of the prosecution and defence agree that the case of Lau Tak Ming [1990] 2 HKLR 370 is still good authority as a sentencing guideline.  Although the cocaine found in respect of Charge 1, and that in Charge 2 are found in different occasions, by reasons of the defendant's admission and the fact that they were seized by police within very short span of time, I do not see any reason why I should deal with them separately. 

9.The total quantity was 10.56 grammes of cocaine kept in 38 separate bags, falling within the 10 to 50 grammes bracket and warranting a term of imprisonment for 5 to 8 years.  For reasons already stated, I will take a global approach for Charges 1 and 2 and adopt a total term of imprisonment for 5 years as a starting point. 

10.In respect of Charge 3, since the term of imprisonment would exceed 9 months in Charge 1, I do not see any reason why I should call for a DATC report.  Again, both prosecution and defence agree on the authority for possession of dangerous drugs is HKSAR v Mok Cho Tik [2001] 1 HKC 261 where the Court of Appeal decreed that the proper starting point for possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months.  In this case, for the possession of dangerous drugs it was in two bags, two bags of ‘Ice’ that seems to be within a reasonable quantity for a normal addict. 

11.In the case of the possession of the herbal cannabis, the defendant had admitted that he had no use for them.  The court would consider that there might be a chance that he might pass it on to somebody else; nonetheless as it is a small quantity and in view of the sentence to be imposed on the Charges 1 and 2, the court would adopt a more lenient approach by globally considering 12 months as a proper starting point for Charge 3. 

Mitigation in Sentence

12.I turn to consider the mitigation put forward by counsel for defence and also from the circumstances of the case. 

13.The defendant is a mature man with two previous convictions.  The last one was dated 10 April 2018.  He could not expect this court to accord him with exceptional leniency on account of his background and age. 

14.The defendant had already been granted a green card and hence the right to live in America to join the rest of his family, namely his three younger sisters and his parents.  He chose to move back to Hong Kong and now he is a divorcee with a 10-year-old daughter who was in the custody of his ex-wife.

15.He now lives with his pregnant girlfriend who is, expected soon to give birth.  It is contended that because of the financial strain that he decided to make money by trafficking in dangerous drugs. 

16.None of these constitute any valid mitigating factors.  In the circumstances, the only valid mitigation is the fact he pleads guilty to all the charges. 

17.Therefore in respect of Charges 1 and 2, the 60 months' imprisonment would be reduced to 40 months.  They are to run concurrently.  In respect of the 3rd count, the 12 months' imprisonment is now reduced to 8.  In consideration of the Totality Principle, I will order that four months of the 3rd count to run consecutive to the term of imprisonment for the 1st and 2nd count.

18.In all, the defendant is to serve a term of imprisonment for 44 months.