HKSAR v. Wong Kwai Kuen

HCCC 56/2020

[2020] HKCFI 2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 56 OF 2020

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

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COURT:

The defendant pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug and was committed to the Court of First Instance for sentence. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarized as follows. After interception of one man and one woman who were about to enter the flat in a public housing estate, the door of the flat was closed abruptly. Attempts by the officers to push open the door initially failed and there was no response despite declaration of police identity. Upon reinforcement, police officers gained entry into the flat where the defendant and another woman, who was said to be the defendant’s girlfriend, were present.

Upon search of the flat, a plastic box was found on the floor underneath a tea table. Inside this box were 25 resealable plastic bags, each containing what later confirmed to be the dangerous drug commonly known as ‘Ice’. The total quantity was 14.07 grammes of a crystalline solid containing 14.07 grammes of methamphetamine hydrochloride. An electronic scale and a bag of 18 empty resealable bags were also found. The defendant admitted at that time possession of the dangerous drug but said it was for his own consumption.

The estimated street value of the drug seized was about $7,700.

I was told that the defendant is now 32 years of age. He received education up to Form 2. At the time of the arrest, he was unemployed but he had worked as a chef, warehouse assistant and garage worker before. I was also told that despite the defendant is not married, he has a son now 7 years old and was living with the defendant’s girlfriend.

The defendant is not a first-time offender. Indeed, his criminal record is quite poor. He was in 2002 convicted of four charges of robbery and two charges of theft. In 2004, he was convicted for shoplifting. In 2005, he was convicted of one charge of handling stolen goods, one charge of criminal damage, one charge of claiming to be a member of a triad society, one charge of AOABH and one charge of common assault. In 2007, he was convicted of one charge of unlawful sexual intercourse with a girl under 16. In 2011, he was again convicted of AOABH. In 2012, he was convicted of one charge of theft and one charge of making off without payment. In 2016, he started to have conviction in relation to dangerous drug. For one charge of possession of dangerous drug and one charge of possession of equipment fit for consumption of drug, he was sentenced to DATC.

The present case, however, is the first time the defendant has been convicted of the offence of trafficking in dangerous drug. He committed the present offence a few days after he had been discharged from custody upon a recall order.

Learned counsel for the defence, Mr Mak, asked the court to take into account that the defendant had pleaded guilty at the earliest opportunity and that a significant portion of the dangerous drug found was for the defendant’s own consumption. Mr Mak said that according to his instruction, about half of the quantity seized was intended by the defendant for his own consumption. He stressed that there is no evidence, not even allegation that the defendant was sharing drug with others when officers entered the flat.

It was held in HKSAR v Tam Yi Chun CACC 524/2011 that in the case of trafficking in ‘Ice’, if the narcotic content was between 10 to 70 grammes, a sentence of 7 to 11 years’ imprisonment should be considered. For trafficking in 14 grammes of ‘Ice’, a sentence of 7 years and 3 months would have been appropriate. As regards the assertion of self-consumption, the defendant elected not to testify.

In consideration, I took into account that the defendant had conviction records which indicated that he was a drug abuser. Upon arrest, the defendant said under caution that the drug found was for his own consumption. Urine test conducted two days after the defendant had been arrested and taken into custody showed positive result for methamphetamine. The defendant was not a tenant of the flat and Mr Mak said that he was only a visitor to the flat. The above are matters which support the assertion of self-consumption.

On the other hand, electronic scale and 18 empty resealable bags were found in the flat though the defendant did not admit that these items were in his possession.

The estimated street value of the drugs seized was about $7,700.

Mr Mak said that the defendant had the financial capacity to own this quantity of drug, in particular as the mother of the defendant was providing the defendant about $10,000 a month to encourage him to turn over a new leaf. The mother was working as an assistant in a home for the elderly. Without positive evidence, I have reservation in this submission regarding financial capacity. Notwithstanding that, I take into account the submission of Mr Mak that the cost of the drug was not that high anyway.

All in all, I am persuaded in the circumstances of the case to accept that a proportion of the drug found was intended for the defendant’s own consumption and the proportion justifies a lower sentence. In this connection, I have had regard to cases including HKSAR and Wong Suet Hau CACC 366/2000, HKSAR v Cheung Man Wai CACC 189/2015, HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572 and the sentencing consideration mentioned in these cases as well as HKSAR v Yeung Shek Yung CACC 314/2016.

In the course of consideration and for reference purpose, I have considered the possible effect on a sentence based on some assumptions on the quantity of drugs possessed for consumption. Assuming half the quantity of ‘Ice’ was for self-consumption and that means about 7 grammes only was for trafficking, a starting point about 5 years and 9 months should be considered.

There is, however, insufficient basis for me to be satisfied that as much as half of the quantity of the drug found was intended for self-use. If the assumed quantity for assumption is less, say, assuming 4 grammes were for consumption, meaning 10 grammes were for trafficking, a sentence of about 7 years should be considered.

I also have to take note that possession of ‘Ice’ by itself usually carries a custodial sentence and if the quantity for assumption is as much as half the quantity seized in this case, a substantial imprisonment term should be considered.

Latent risk in the present case, in my assessment, was very substantial. In all the circumstances, I adopt an ultimate starting point of 6 years and 9 months.

The defendant pleaded guilty to this offence. He is therefore entitled to a one-third discount. Having regard to the whole circumstances, including everything said on the defendant’s behalf by Mr Mak, in my judgment, this is the extent of discount the defendant is entitled to.

The defendant, please stand up. For the abovesaid reasons, I sentence you to an imprisonment term of 4½ years.