HKSAR v. Wong Sum Yeung, Sam

HCCC 269/2018

[2019] HKCFI 676

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 269 OF 2018

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

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COURT:

On 27 August 2018, Mr Wong Sum-yeung, Sam (who I will refer to as the accused) appeared before a magistrate in the Eastern Magistrates’ Court and pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance.

The particulars of the offence alleged that on 6 April 2018, at Chak Cheung Street in Shatin, he trafficked in 142.8 grammes of a solid containing 122.9 grammes of cocaine. Cocaine is, of course, a dangerous drug by reason of the schedule to the Dangerous Drugs Ordinance.

In the proceedings before the magistrate, the accused admitted to a Summary of Facts. He was committed to this court for sentence. The essence of this summary is that the police were on anti-narcotic operation at the location, the subject of the charge, which is near the University MTR Station. The accused was seen in the vicinity of this location acting in a highly suspicious manner. The behaviour that attracted the attention of the police was that a male approached a vehicle bearing the registration mark UJ 304 parked in the street. The accused was seen to alight from the driver’s seat of this vehicle and appeared to greet that unknown male. He was seen to pass something to the unknown male while the unknown male was looking around constantly. The male got into a taxi and was seen no more.

This behaviour alerted the police to intercept him. That is hardly surprising. It is conduct which could be viewed as suspiciously like an act of drug trafficking.

When the police revealed their identity as police officers, the accused pushed one of the officers away and attempted to flee. He was immediately subdued although for some time he kept up an element of resistance.

The accused was searched and from his left rear pants pocket, a transparent plastic bag (with the word “24.7” was written on it) containing 23.8 grammes of a solid containing 20.9 grammes of cocaine was found. The police then turned their attention to the vehicle from which the accused alighted. They searched the vehicle and found on the left front passenger seat a red plastic bag containing five plastic bags. These individual bags were wrapped in white tissue paper. They contained a total of 119 grammes of a solid containing 102 grammes of cocaine.

The accused was arrested. He was searched. As a result of the search of the accused and the vehicle, a total of three smart phones were found and a wallet containing $11,978 was found. A search of the residence of the accused in Tseung Kwan O produced nothing.

The accused was arrested and interviewed under caution. Throughout this exercise, he remained silent as was his right. I do not hold that against him but it is clear from his conduct and the circumstances at the place of arrest that the only reasonable inference is that he possessed the cocaine for the purpose of unlawful trafficking. He has now pleaded guilty and admitted this Summary of Facts. His plea of guilty is, of course, an admission to each and every element of the offence.

The estimated street value of the cocaine that was seized from the accused is of the order of $165,000.

Background of the accused

The accused is aged 22, having been born on 19 April 1996. He was born on the mainland China and attained Form 3 secondary education on a full-time basis in Hong Kong. The accused lives in Tseung Kwan O with his mother and father. To the police, the accused said that he was a driver, building maintenance worker and engineering assistant. He also completed Form 4 at evening school. He attended the teens programme and received grades and comments which reveal a person who was highly commended.

I make the remark that when one reads these documents, it is almost like sentencing two different people.

The accused has previous convictions for theft, criminal damage and common assault.

Mr Earnest Cheung, Barrister at Law, made submissions on behalf of the accused. He confirms the essence of the background obtained by the police. In addition, he revealed that the accused works in a construction company run by his parents. Counsel told the court that the accused went astray as an adolescent. That is consistent with the criminal record which has been admitted.

Counsel for the accused accepts that the accused had a bad period in his relationship with the law and then became a hair salon assistant for about six years. Then he joined his parents’ company in the construction field for the purpose of advancing himself and helping his parents. He now has a series of qualifications relevant to the construction industry which he has obtained by reason of his own hard work. In particular, he has obtained qualifications in safety supervision. He has obtained a rigger’s certificate and a number of qualifications from the Open University of Hong Kong in construction-related subjects. On any view, that is to his credit.

I have received and considered letters from a wide variety of sources which gives me the advantage of having a view of the accused from different perspectives. In their own ways, each of the letters provides positive statements about the accused. For me, the letter from the parents of the accused requires individual mention. Their pain and anxiety in relation to the previous wayward life of the accused is palpable. He is described as a caring and filial son anxious to do good. The parents explain, understandably, that the accused got into debt and drug-trafficking activities with his own way (there is not the slightest suggestion of any direction or encouragement from his parents in this regard) of solving the problem. The letter from the colleague of the hair salon is also positive in that he described the accused as hardworking and willing to learn. The acquisition of the qualifications that the accused has received in the construction field underlines this point. His teachers describe him as a person of fortitude and perseverance. Finally, the accused himself in a letter expresses his guilt and remorse for his conduct, and that carries with it the recognition of just how wrong he was in adopting this course to solve his problem.

I accept that the accused is deeply remorseful. I accept that he intends to continue his study in gaol. It is a matter of sadness for all concerned that the accused adopted what on any view must be seen as a monumentally stupid way of solving his problems.

Sentencing Principles

For many years, the community of Hong Kong has taken a severe view of drug trafficking particularly in relation to drugs such as cocaine. It is easy to see why. This drug has terrible consequences for the individual. It is addictive. Ridding oneself of that addiction is, to say the very least, an arduous process and, sadly, history demonstrates that attempts to rid oneself of an addiction to cocaine is fraught with instances of disappointment. However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs.

The view of the community is reflected in the maximum sentence provided by section 4 of the ordinance. That provides for convictions on indictment that a maximum sentence of life imprisonment. The view of the community is also reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The policy underlying this approach to sentencing for drug trafficking is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs, the subject of the charge in this case.

The source of guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming & Others [1990] 2 HKLR 370. In Attorney General v Rojas [1994] 1 HKC 342 and Chang Chen Liu [1994] 3 HKC 685. The Court of Appeal declared the guidelines in Lau Tak Ming & Others (above) as appropriate for cocaine. The correctness of guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.

In HKSAR v Kilima Abubakar Abbas [2018] HKCA 602, [2018] 5 HKLRD 88, §46, 73, 144-146, the Court of Appeal recently observed that sentencing guidelines for trafficking in dangerous drugs are guidelines designed for sentencing couriers and persons about that level in the chain of distribution commonly associated with the trafficking in dangerous drugs. The effect of the tariffs stipulated in R v Lau Tak Ming [1990] 2 HKLR 370, which were in respect of heroin and have been adopted in respect of cocaine and with some variations with respect to “Ice”, was that tariffs were set for a person who was involved at the lowest level, mainly as a courier and storekeeper. The Court of Appeal held that no regard was to be had for distinctions in the role of courier or storekeeper as a factor in mitigation reducing the tariff sentence. No one could doubt that the regime of sentences in drug-trafficking cases in Hong Kong is harsh. Our courts have chosen this path, and this court is bound to follow it. I make these observations out of respect for the eloquent plea made by counsel for the accused which must be seen against the relatively minimal room to manoeuvre that the sentencing court has in cases such as the present one.

It seems to me that but for this monumentally stupid decision to sell dangerous drugs, it is likely that this man would have gone on to develop a career in the construction field and enjoy a substantial degree of pride in himself and generate an equal, if not larger degree of pride in his parents. Until this monumentally stupid decision, this young man had the potential to become a good and contributing member of our community. It will be appreciated by him that the path of these achievements is going to have to be interrupted by the sentence that I have to pass. I profoundly hope and I wish that although the sentence I have to pass will be an interruption, that it is not the termination of this man’s path to realising his potential. I can only hope that when this man emerges from prison that he continues on this path. It is a tragedy that his conduct means there must be an interruption of that by reason of having to go to goal. However, by far the greater tragedy would be if he does not immediately step back onto that path to realise that potential when he is released from prison.

Starting Point

The applicable sentencing guidelines provide for a sentence for quantities between 50 grammes and 200 grammes of cocaine to attract a sentence of between 8 and 12 years. Applying the sentencing guidelines, the appropriate sentence for this quantity of cocaine, had the accused been convicted after trial, would have been a sentence of 9 years and 5 months. A strictly mathematical approach may have mandated something which is a fraction higher than most starting points, but sentencing guidelines within a band are to be described as a curve rather than a straight line.

The accused is a person who has taken responsibility for his conduct and pleaded guilty at the earliest practicable moment. For that, he should receive a reduction of one‑third of the sentence which might have been applicable had he pleaded not guilty and gone to trial and been convicted thereafter.

Accused, please stand up. Doing the best that I can to combine justice and mercy, I order that you be sentenced to 6 years and 2 months’ imprisonment.