HKSAR v. Wong Ka Wo

HCCC 105/2020

[2020] HKCFI 2645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 105 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 Wong Ka-wo(黃家和) was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The Admitted Facts disclose that the defendant and another person - we will call him AP - arrived in Hong Kong from Addis Ababa of Ethiopia. They were selected for customs clearance. From the defendant’s suitcase, customs officers found some packaging material containing something inside. When asked, the defendant said they were chocolate. Customs officers opened the packaging and found a total of six books. The books were unusually thick and white powder, which later tested to be cocaine, was found concealed inside the cover of these books.

There were 12 packets in total, containing 5,959 grammes of a powder containing 4,751 grammes of cocaine with a street value of about HK$5,571,665.

The defendant was arrested and cautioned for trafficking in a dangerous drug. Under caution, the defendant denied knowledge of the contents inside the book covers, saying that they were given to him by a friend in Africa to bring back to Hong Kong for onward delivery to someone without any reward to him. The defendant was found to have three mobile phones and seven SIM cards. One was registered in his name, four were prepaid local SIM card and two were overseas ones.

And during a preliminary interview under caution, the defendant said he was given the books already wrapped up by someone known as Hak Gwai(黑鬼) in Africa to bring back to Hong Kong. He did not know the contents inside the packages.

Later on, the defendant attended a video-recorded interview. Again, the defendant gave lengthy exculpatory explanation of how he came to be in possession of the books containing the dangerous drug. In a nutshell, the defendant claimed to have met his friend AP at a game centre a year ago and AP invited him to go to Ethiopia to watch a boxing match at AP’s expenses though the defendant had never watched any boxing match with AP before. They left Hong Kong for Ethiopia via Bangkok.

In Ethiopia, they watched a boxing match. And just before the return flight, a friend from Africa gave defendant and AP two packets each, that is, those later found to contain the dangerous drug cocaine. After AP’s translation, the defendant understood that friend wanted them to bring the items to family members in Hong Kong. AP told the defendant that his suitcase was full and asked the defendant to store all the packets which said to contain chocolate in the defendant’s suitcase. The defendant claimed he did not find it suspicious for that African friend whom he had only knew for a day to ask him to deliver the packets. He did not check the contents either.

From the mobile phones of the defendant, suspicious messages were found between the defendant and this so-called Hak Gwai(黑鬼) which suggested the defendant was engaged in some item-collecting task for Hak Gwai(黑鬼) for a reward. Suspicious messages were also found between the defendant’s de facto wife and AP about compensation for the defendant’s arrest.

Despite the earlier denial, the defendant admitted that at the material time, he was knowingly in possession of the cocaine seized for the purpose of unlawful trafficking.

Background and mitigation

The defendant was born in 1985 in Hong Kong. He is now 35 years of age. He is not a man with a clear record. He has seven criminal convictions, five of which are drug-related, three for possession of dangerous drug and two for trafficking in a dangerous drug. The defendant was educated up to Form 3 level and worked as a casual construction worker, earning about 10,000 to 15,000 per month prior to his arrest. The defendant lived with his de facto wife and the two had a 3-year-old son.

In mitigation, his counsel, Mr Chau, stressed that the defendant had pleaded guilty at the earliest available opportunity and he had committed the present offence because of financial problem as his father passed away in 2018 and he was not able to raise the funeral money and having to borrow money.

Consideration and reasons for sentence

The offence of trafficking in a dangerous drug is a serious offence. A person convicted upon indictment is liable to life imprisonment and a fine of $5 million.

In the case HKSAR v Abdallah, the Court of Appeal set down guidelines for trafficking of over 600 grammes of cocaine. The cocaine involved here is 4,751 grammes which falls into the category of 4,000 to 15,000 grammes with a starting point of 26 to 30 years. The quantity of cocaine involved here would attract a starting point of 26 years and 3 months for a first offender. Bearing in mind the inevitability of an enhancement to reflect the international element, I will not enhance this starting point by virtue of the defendant’s bad record. As the amount involved is over 1 kilogramme, the enhancement for the international element would not be less than 2 years in addition. That is the case of Abdallah. So with the enhancement of 2 years, the starting point is one of 28 years and 3 months.

The defendant pleaded guilty at the earliest available opportunity and is therefore entitled to the full one-third discount. Apart from the defendant’s early plea, there exist special circumstances on the papers which justify a lenient view to be taken of the facts. I am of the view that a total discount of around 45 per cent, that is inclusive of the 33.33 per cent, is warranted here. So with a discount of 45 per cent, the sentence would be one of 55 per cent of 339 months, that is, 28 years and 3 months. So 55 per cent of 28 years and 3 months equals to 186.45 months. But I will not take into account the 0.45 months, so the sentence would be one of 186 months, which is equivalent to 15 years and 6 months.

So for the offence of trafficking in a dangerous drug, the defendant is sentenced to 15 years and 6 months’ imprisonment.