HKSAR v. Wan Ho Nam, Roy

HCCC 294/2018

[2019] HKCFI 715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 294 OF 2018

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

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COURT:

The defendant has pleaded guilty to the single offence he faced of trafficking in a dangerous drug.

The defendant was arrested on 24 February 2018 and admits by his plea that on that day he was trafficking in the drugs in his possession, namely a total of seven plastic bags containing 120.6 grammes of a solid containing 85 grammes of cocaine.

The facts of this case

In admitting this offence, the defendant has agreed a Summary of Facts which sets out the circumstances of his arrest and the commission of this offence. At about 11.30 pm on 24 February 2018, the defendant who was driving a private vehicle at the time was directed to stop at a police roadblock set up on Tai Po Road, New Territories. In fact, a police officer in a police vehicle nearby saw him attempting to reverse and go back the way he had come when he obviously saw a roadblock ahead of him. That police officer stopped him and directed him to the roadblock.

The defendant himself told the police that the vehicle contained drugs and it was searched. In a storage compartment by the driver’s door, the police found four plastic bags containing a total of 84 grammes of a solid containing 59.3 grammes of cocaine. The defendant told the police that it was cocaine for self-consumption.

The police continued to search the vehicle and found in the storage compartment between the two front seats three more plastic bags containing a total of 36.6 grammes of a solid containing 25.7 grammes of cocaine. Again, the defendant told the police it was cocaine for his own consumption.

Six of the seven bags have numbers written on them, two have “149” on them in pen, whilst four have “249” on them. It is obvious that the two bags with “149” written on them have less drugs in them than the other four. The last bag with a small amount of cocaine has no writing on it.

A house search was done at the defendant’s home with no further incriminating items found. The defendant was not the registered owner of the vehicle he was driving.

It is agreed that the estimated retail value of that amount of cocaine was in the range of 120,000 to $160,000.

The defendant’s previous convictions

The defendant has seven previous convictions recorded over four court appearances. He was first sentenced to a drug addiction treatment centre for possession of dangerous drugs in August 2010. In May 2012, he was ordered to complete 160 hours of community service after he was convicted of three theft charges. The defendant was arrested for possession of dangerous drugs and found in breach of his community service order. He was sentenced to a drug addiction treatment centre order in September 2012. His last conviction was a possession-of-dangerous-drugs charge where he was sentenced to 6 weeks’ imprisonment in February 2015.

The defendant mitigation

The defendant was born in January 1990 and is now aged 28. He was educated up to Form 5 in Hong Kong and then had to enter the workforce to support his mother and brother. He worked as a cross-border driver for four years from 2014, earning $30,000 a month. He married in 2014 and his wife and 4-year old son are presently living in mainland China. He has been unemployed since January 2018 because he lost his job. Financial problems ensued because of school expenses escalating as his son prepared to enter kindergarten. His wife does work as a saleslady but her income is low.

Prior to his arrest, the defendant was living with his mother who divorced his father over 10 years ago. His parents worked long hours when the defendant was young and were seldom at home. The defendant took care of himself and his younger brother from a very young age. His parents did not have a harmonious marriage and divorced when the defendant was a teenager. His father, thereafter, rarely contacted them and did not provide any financial assistance.

The defendant claims to be a drug addict and that some of the cocaine was for his own self-consumption. He now says that one bag with “149” written on it was for self-consumption. He relies on his previous convictions to evidence his drug habit. We adjourned sentence to today to obtain the results of a urine test conducted when the defendant was remanded after his arrest and it tested negative for amphetamine, benzodiazepine, cannabis and opioids. He was not tested for cocaine. These results are therefore neither here nor there.

The prosecution’s stance is that they do not accept the mitigation that part of the drugs was for self-consumption. They point out that the drugs were in the defendant’s car with other drugs and not at home. The prosecution says the packaging suggests at least six of the bags were for sale and there was no drug-taking paraphernalia in any of the car or defendant’s home. In addition, the value of the drugs was significant and as the defendant was unemployed, he would not have been able to afford it, certainly not afford all of it.

The prosecution does accept that his urine test did not include a test for cocaine when he was remanded in custody. They accept he has several previous convictions for possession of dangerous drugs and has been sent to a drug addiction treatment centre before. They have discovered that his past drug convictions relate to ketamine for two convictions and are unsure for the third conviction what drug was involved.

As far as trafficking cocaine is concerned, the guidelines of The Queen v Lau Tak Ming [1990] 2 HKLR 370 apply to cocaine and the starting point for trafficking in between 50 to 200 grammes of narcotics is 8 to 12 years’ imprisonment. That authority involved heroin but sentencing for trafficking in cocaine is aligned to the guidelines for trafficking heroin, The Attorney General v Rojas [1994] 1 HKC 342. For this quantity of cocaine, mathematically speaking, the starting point of 8 years and 11 months would be appropriate.

On the issue of self-consumption, the defence claim that some of the drugs was for his own use and now says that one of the smaller packets of the six substantial packets was for his own consumption. The question for this court is whether part of the cocaine was for his own use as he claims or whether all of it was to be trafficked. The defendant has decided not to give or call evidence on the issue.

Ms Wu for the defendant makes the following points to support a self-consumption claim:

(1) The defendant has a prior history for consuming drugs and several convictions for possession of dangerous drugs. His latest was in 2015, three years before this arrest.

(2) Urine test was conducted on remand but he was not tested for cocaine.

(3) He does not require drug-taking paraphernalia to take cocaine.

(4) Having drugs in his car as opposed to being stored at home does not necessarily preclude some from being his own.

Defence counsel submits that when taking these matters into account, it is plausible that some of the drugs were for self-consumption as claimed. The Court of Appeal decision of HKSAR v Wong Suet Hau and another [2002] 1 HKLRD 69 sets out the principles for a sentencing court when considering the issue of self-consumption. I quote from paragraph 34:

“(1) Where, after a plea of guilty to trafficking in dangerous drugs, it is suggested in mitigation, that a significant proportion of the drugs was intended for the consumption of the defendant and not for trafficking, and where it is apparent from the circumstances as a whole that the contention, if true, may well make a difference to sentence, the sentencing court should address the issue.

(2) Having regard to the dangers of the abuse of this avenue of mitigation, the judge should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the contention.

(3) In determining whether to accept the contention, the normal rules for determining the factual basis for sentence apply. The factors to be considered will include:

(a) the quantity of drugs and, if known, their value;

(b) the general circumstances, including how the drugs are wrapped and how many wraps or packets are found;

(c) where the drugs have been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;

(d) the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;

(e) whether the defendant is an addict or is otherwise accepted to have been a habitual user of the drug in question;

(f) the explanation given by the defendant following arrest;

(g) the defendant’s general means and his ability to pay for his drugs otherwise than by trafficking in them; and

(h) the defendant’s criminal record, if any, in relation to previous drug offences.

Usually, a court will be able to determine the issue from these factors without a Newton hearing (see also: Archbold 2002, paragraph 5-20).

(4) Where it is accepted that a significant proportion of the drugs were for the defendant's own consumption, it is unnecessary, save in the most exceptional cases where the division is readily quantifiable, for the sentencing judge to specify the relative amounts or proportions, except perhaps in the very broadest of terms. In such circumstances the court should so adjust sentence as to reflect the fact that not all the drugs were for trafficking. However, in doing so, the judge should keep well in mind:

(i) the fact that possession of dangerous drugs itself carries a term of imprisonment;

(ii) the requirement to enhance sentence for simple possession of drugs to reflect, where appropriate, the ‘latent risk’ factor (see: HKSAR v Mok Cho Tik [2001] 1 HKC 261) which takes into account the risk that some of the drugs intended for self-consumption may nevertheless find their way into the hands of others.

An application of considerations (i) and (ii) may well offset much of the practical value of the mitigation, particularly with certain dangerous drugs which are commonly used amongst friends at social functions, including ‘Ice’ (see: HKSAR v Lam Wai Ip, CACC 214 of 1997, unreported) and ‘Ecstasy’ (see: HKSAR v Lee Tak Kwan [1998] 2 HKC 371 at 376).”

The Court of Appeal has since made it very clear that the defendant is only entitled to a discount for self-consumption if the judge finds that all or a significant proportion of the drugs were to be consumed by him. A significant proportion was said in Wong Suet Hau to be a proportion that would make a difference to his sentence.

The sentencing court must be satisfied and what must be proved to the judge’s satisfaction is that all or a significant proportion of the drugs were for self-consumption and if true, it may well make a difference to the sentence.

When considering whether this mitigation is true, the normal rules for determining the factual basis for sentence apply and if accepted, it is unnecessary for the judge to specify the amount for self-consumption except in the broadest of terms.

If this mitigation is accepted, then a discount of a range between 10 to 25 per cent has been suggested in HKSAR v Chau Chun Sang [2002] 2 HKLRD 1121, at paragraphs 19 and 20.

The sentencing court should consider whether the claim is credible and then proven to the court’s satisfaction. Often, a Newton hearing will be required to do this. Bald assertions or mere assertions will not suffice as a rule unless not challenged. Therefore the court should be presented with credible and reliable information that is material to this mitigation.

I have considered the factors relied on by the defendant to put forward a credible claim and I find it just enough to support or resolve a contested claim of self-consumption. I am satisfied that a proportion of the drugs was intended to be consumed by the defendant. There will be a small discount to reflect the quantity he claims to be for self-consumption. The discount will not be significant because simple possession of a dangerous drug in itself is an offence which would call for a term of imprisonment. There is always a latent risk that this bag would have been sold for a profit if the opportunity arose rather than kept for self-consumption.

I have considered mitigation, facts of the case, the defendant’s plea and background. I will take 8 years and 11 months as a starting point for this quantity of cocaine. I will reduce that starting point by 17 months which is about a 16 per cent discount to 90 months to reflect the mitigation put forward of self-consumption. To take into account his plea, the defendant is entitled to a discount of one-third from this starting point. This will be a discount of 30 months.

Therefore for this charge, the defendant is sentenced to 5 years’ imprisonment. Do you understand the sentence?

ACCUSED: Yes.