HKSAR v. Wu Chi Nam Dandy

HCCC 59/2020

[2020] HKCFI 2885

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 59 OF 2020

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

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COURT: Defendant has been committed to this court for sentence on two counts of trafficking in a dangerous drug: the 1st count involves 71.9 grammes of a crystalline solid containing 71.9 grammes of methamphetamine hydrochloride; the 2nd count involves 13.6 grammes of a crystalline solid containing 13.6 grammes of methamphetamine hydrochloride.

The facts are that, on 25 January 2019, police saw the defendant leaving a building and intercepted him. On his person was found the drugs which is the subject matter of Count 1. Under caution, the defendant admitted that these belonged to him. He was taken back to the building for a house search and inside the room was found the drugs which is the subject matter of the 2nd count. Also found was an electronic scale.

The defendant subsequently in a video recorded interview admitted that the dangerous drugs belonged to him and he informed the police that he intended to consume some and sell the drugs, and he said he was unemployed at the time.

Now, he also said that, in a later video recorded interview, that the electronic scale was for weighing drugs for sale.

The estimated retail value of all the dangerous drugs seized was in the region of HK$46,854.

The defendant is aged 50 and has a poor record. He has got about 12 previous convictions and one was for trafficking in 2014, where he was sentenced to 4 years and 10 months’ imprisonment, and then he has also got some 5 convictions for possession of dangerous drugs and possession of equipment fit for smoking dangerous drugs.

His last conviction was in February 2018 for possession of equipment fit for smoking/injecting/inhaling dangerous drugs, for which he was given 4 months, and also for possession of dangerous drugs and he was sentenced to 10 months. So it is clear that in the last few years the defendant has been committing dangerous drug offences.

In mitigation, Mr Hui has pointed out that the defendant had had a fall in 2004, from which he suffered injuries and, most importantly, to his pelvis. There was infection of his wound and eventually he was also found to have pulmonary tuberculosis, with bacterial infection in his right hip, and he has had to undergo operations and there will be follow-up treatment in relation to his injuries.

And Mr Hui also pointed out that the defendant had indicated that some of the drugs seized were for his own self-consumption, but it was only on an ad hoc basis, in the sense that, if he could not sell, then he may take some for his own consumption; if he sold more, then he would take less. And, as Mr Hui pointed out, this is reflected in the urine sample test collected by the Correctional Services after his arrest.

However, I do note that the defendant was unemployed at the time and I do not think that he will be taking a lot of those drugs for his own consumption as he would depend on selling those drugs to maintain his livelihood.

The defendant has stated through Mr Hui that he does not wish to give evidence on his abuse of the drugs in the -- of the amount of drugs seized by the police.

I agree with Mr Hui that the two charges really in the circumstances should be regarded as representing one occasion, so I agree with the approach which is in HKSAR v Wan Lau Mei in CACC 389/2013, where the court said that sentences on both counts should be imposed for that total, making the sentences concurrent with one another, as such an approach will more truly reflect the accused person’s culpability.

The total amount of drugs in this case amounts to 85.5 grammes, so following the guidelines in Tam Yi Chun in 2014, where the Court of Appeal suggested that for trafficking between 70 to 300 grammes will merit a sentence of about 11 to 15 years’ imprisonment after trial, now, the total amount of drugs being 85.5, the starting point sentence will be somewhere between 11 to 11½ years.

Mr Hui has worked out mathematically it should be 11 years and 3 months.

However, I do take into account the fact that the defendant has a poor record. I will adopt the starting point of 11½ years.

I will reduce it by 6 months to take into account the fact that some of it is for his own consumption.

So that gives me a starting point sentence of 11 years and giving the defendant the full one-third discount will reduce the sentence to 7 years and 4 months.

So I will sentence the defendant to 7 years and 4 months on each count, and the sentences will be served concurrently.