HKSAR v. Wan Hon Sik

HCCC 359/2018

[2019] HKCFI 1790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 359 OF 2018

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Reasons For Sentence

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The defendant, Wan Hon-sik, pleaded guilty before me to one of trafficking in a dangerous drug. The offence took place on 10 October 2016 and the subject matter of the drug is 25.5 grammes of a crystalline solid containing 25.5 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.

The case against the defendant is simple and straightforward and it is a stop and search case. At around 5.01 pm on 10 October 2016, PC5614 (PW1) was on duty at Nelson Street near Exit E1, MTR Mong Kok Station, when he saw the defendant walking out of the exit. As PW1 noticed that the defendant was acting furtively, he intercepted the defendant.

Upon the body search, PW1 found, in the left front pocket of the defendant’s trousers, a plastic bag containing 25.5 grammes of a crystalline solid containing 25.5 grammes of methamphetamine hydrochloride which was wrapped into tissue papers. Cash in the sum of $1,644 and three mobile phones were also found in the defendant’s possession. The defendant was arrested.

Under caution, he claimed that the ‘Ice’ was for his own consumption. Later on the same day, a video-recorded interview was conducted with the defendant in which he stated, inter alia, the following under caution:

(a) He hanged out at Mongkok and came to know a male “Ah Yan” who have sold drug to him but he did not have any mean to contact this man;

(b) He bought the ‘Ice’ at a price of $2,600 from Ah Yan for his own consumption;

(c) He had intended to go to Portland Street to take a taxi home but he was arrested on the way;

(d) The cash of $1,644 found on him was his salary as a part-time construction worker;

(e) His daily salary was $600 and his monthly salary was about $20,000; and

(f) For the three mobile phones found in his possession, one was not working and he used the other two to contact contractors for construction sites.

The estimated market price for the seized drug at the time of the offence is about $9,256.50.

By pleading guilty to the charge, obviously contrary to what he has claimed to the police, the defendant agrees that he possessed all the ‘Ice’ for the purpose of trafficking.

The criminal record of the defendant shows that he has 30 previous conviction records in the past since 1990 when he was 16 years old. He had 12 drugs related records and in particular, three similar records of trafficking in dangerous drugs, in both 2003 and 2014 respectively, for which he was sentenced to 7 years and 14 months’ imprisonment respectively. He was last discharged from the DATC at Hei Ling Chau in May 2016.

According to the antecedents statement of the defendant, the defendant is now 45 years old, locally born. He received education up to Form 2 level. The defendant had previously worked as a construction worker before he was arrested. He is still single although he also has a daughter with a co‑habitee.

I was informed that the defendant has pleaded not guilty to the same charge and was previously convicted after trial by jury on 25 September 2017, for which he was sentenced to 8½ years’ imprisonment after trial.

In sentencing the defendant, the trial judge then took into account obviously the tariff for trafficking in ‘Ice’ and also the aggravation on account of the defendant’s previous similar records and the fact the offence was committed only within six months after he was released from Hei Ling Chau.

In mitigation, Mr Andy Hung, counsel for the defendant, submits that he has no quarrel with the tariff set down by the Court of Appeal in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 which provides that for trafficking between 10 and 70 grammes of ‘Ice’ is 7 to 11 years’ imprisonment. Given that 25.5 grammes were seized by the police from the defendant this time, the appropriate starting point should be about 8 years’ imprisonment.

Mr Hung submits that the only mitigating factor in this case is the guilty plea of the defendant but he also acknowledges that it cannot be treated as a timely plea at the very first opportunity as the defendant only offered to plea after his appeal against the conviction was allowed by the Court of Appeal and a retrial was ordered and was only one day before the case was relisted for trial.

In sentencing the defendant in this case, I have borne in mind the nature of the drugs and the quantity of the drugs. I have considered the facts of the case and all the matters urged on the defendant’s behalf by Mr Hung. I am of the view that given that quantity of ‘Ice’ was involved in the present case, applying the tariff as set down by the Court of Appeal in Tam Yi Chun, a starting point of about 8 years should be adopted based on the quantity.

Also, the defendant is no doubt a repeated offender on drug trafficking offence and committed the present offence within a very short time after he was discharged from the DATC. So I am duty-bound and I entirely agree with the level of enhancement adopted by the trial judge on the previous occasions. So similarly, I will also enhance the starting point by 6 months to 8 years and 6 months’ imprisonment.

In the hearing, I was helpfully referred to the case of HKSAR v Ng Chun To Raymond [2017] 2 HKC by Mr Siu, Senior Public Prosecutor on behalf of the prosecution, which laid down the principle that as a general practice, the judge should not impose a higher sentence at a retrial than this trial.

Mr Siu also referred me to several passages at the same time in the judgment of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 in which the Court of Appeal approved the practice of affording not one-third but one-quarter of discount for the applicant who pleaded guilty at the retrial for reason being that it cannot be said to be a truly timely plea.

Mr Hung responded that he could not dispute the proposition as he was unable to find any authority to the contrary.

The defendant in this case pleaded guilty at the retrial and accordingly, he is only entitled to 25% reduction for his guilty plea according to the case of Ngo Van Nam. That would take the sentence down to 76.5 months, according to arithmetic calculation but I would exercise my discretion and order him to serve this time of 6 years and 4 months’ imprisonment only.

Apart from the guilty plea of the defendant, there is no effective mitigating factor which can further reduce the sentence.