HKSAR v. Wong Koon Yin

HCCC 303/2018

[2019] HKCFI 2111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 303 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 unlawfully trafficking in 3,939 grammes of a powder containing 3,153 grammes of cocaine on 17 March 2016. He was jointly charged with another male, Tsang Wai-hung, who has pleaded guilty previously.

On 17 March 2016, police officers attached to the Narcotic Bureau were on duty in Mongkok, Kowloon. At about 9 pm, they intercepted Tsang carrying one packet of powder containing 169 grammes of cocaine, one electronic scale and a hotel room key. He was escorted to that hotel room where the police found a backpack containing three plastic bags containing 1.98 kilogrammes of a powder containing 1.59 kilogrammes of cocaine, 750 grammes of a powder containing 591 grammes of cocaine and 1 kilogramme of a powder containing 803 grammes of cocaine. CCTV footage from the guesthouse captured an unknown male carrying the backpack into the guesthouse with Tsang.

The retail value of the cocaine seized at that material time was estimated to be around HK$4.2 million.

After further investigation, that unknown male now identified as the defendant was arrested on 1 April 2018.

Under caution, the defendant admitted carrying the dangerous drugs to that guesthouse with Tsang for a monetary reward. He also admitted that inside that rented room, he packed cocaine into smaller plastic bags for the purposes of trafficking. He was unaware until he emptied the rucksack in the room that the goods he was paid to carry with Tsang were dangerous drugs. He did tell the police that at that time he was scared and wanted to leave the room because the quantity of cocaine was so large. They were in the room for about 8 to 10 minutes, he was paid $3,000 as a reward and he identified himself from the CCTV screenshots of the guesthouse.

The defendant indicated a plea of guilty at the committal stage in Eastern Magistracy on 6 August 2018, but at the adjourned hearing on 24 September 2018, he changed his plea to not guilty and his case was committed to the Court of First Instance for trial. Before a trial was set down, he indicated to the court on 24 October 2018, one month later, that he would plead guilty. This was not a plea at the earliest opportunity.

The defendant is 47 years old and was born in Hong Kong. He was educated up to Form 3 level and was unemployed at the time of his arrest. He had previously been involved in the mah-jong parlour industry and was earning up to $50,000 a month. He would contribute about $30,000 to his parents and younger sister for household expenses. He did try and start a business in 2015 but that failed, leading him to be declared a bankrupt person. He had been unemployed for a couple of months before his arrest and was in need of money. His explanation is that he succumbed to trafficking drugs to earn money. He is now genuinely remorseful.

He had a clear record. He has used dangerous drugs in the past but is not an addict. He is married but at the time of arrest was not living with his wife but his parents and sister. I have been told his father is 86 years old and suffering from diabetes. He does not walk well. His mother is 68 years old and still working, earning about $10,000 a month. His younger sister was seriously injured in a car accident when she was 6 years old and semi‑paralyzed since. She heavily relies on her parents and the defendant.

I have received letters of mitigation from the defendant and his family who are all in court to support him as well as an ex‑colleague and a missionary from a local Christian association who has been acquainted with the defendant since his arrest. All ask for leniency on his behalf. Ms Yap for the defendant has said all she can say in mitigation.

Sentencing Guidelines

The authority of R v Lau Tak Ming and Others [1990] 2 HKLR 370 sets out the Court of Appeal’s guidelines for trafficking heroine, which was held in the Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 to equally apply to cases of cocaine trafficking. However, it does not cover such a large quantity as the cocaine in this case. The authority of HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 gives further guidelines for larger quantities of cocaine. The Court of Appeal has decided that where between 1,200 to 4,000 grammes of cocaine is trafficked, then a starting point of between 23 years to 26 years will be appropriate. Here, mathematically speaking, 3,153 grammes of cocaine will attract a starting point of 25 years and 1 month.

The defendant’s best mitigation is his plea of guilty. I have considered all the mitigation I have heard put forward on his behalf. The defendant did not plead guilty at the earliest opportunity and according to HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, he is not entitled to the full one-third discount. He did indicate a plea of guilty before trial dates were set down and therefore according to that authority, he is entitled to a discount of 25 per cent unless the sentencing court exercises its overriding discretion.

I will take a starting point of 25 years. I have taken into account what the Court of Appeal said in Ngo Van Nam, all the mitigation put forward, the defendant’s background and the facts of this case.

Defendant, please stand up. I will exercise my discretion and find a discount of 30 per cent applicable to the defendant’s plea as it came only one month after the committal to the Court of First Instance. That would be a discount of 90 months or 7 years and 6 months. Having considered all the mitigation put forward, however, I will ultimately apply a discount of 9 years and 4 months or a discount of just above 37 per cent. Having applied that discount to the starting point, the defendant is sentenced to a total of 15 years and 8 months. Do you understand that sentence?

ACCUSED: I understand.