HKSAR v. Wong Sai Lun

DCCC 621/2020

[2021] HKDC 217

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 621 OF 2020

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Reasons for Sentence

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1.The defendant has pleaded guilty to two charges today. The 1st charge is trafficking in a dangerous drug. The narcotic quantity of the drug concerned is 8.87 grammes of methamphetamine hydrochloride. The 2nd charge is for possession of a dangerous drug. The narcotic quantities of the drugs possessed are 0.15 grammes of cocaine and 150 millilitres of a liquid containing 161 grammes of gamma-butyrolactone.

2.The facts of the case are straight forward.  The defendant was intercepted on 23 March 2020 in the evening at 9.05 pm.  He was taken to his home which he shares with his parents and a domestic helper in Quarry Bay.

3.In the defendant’s bedroom inside the wardrobe were found the following drugs.  Firstly, the methamphetamine which will be referred to as ‘Ice’ from now on, a total of five separate resealable plastic bags were found which contained in total 8.87 grammes of ‘Ice’.  A resealable plastic bag was found with 0.15 grammes of cocaine and two plastic bottles were found containing 161 grammes of the drug, gamma-butyrolactone, which is GBL.

4.Two electronic scales were found; one I am informed was not working.  There were a further 15 empty transparent resealable plastic bags, a measuring cylinder, a syringe, a plastic straw, together with cash of $11,000 and a further $1,000 in $500 units.

5.The defendant said to the police at the time that the drugs were for his own consumption.  It had nothing to do with his parents and domestic helper.  All the dangerous drugs and apparatus found belonged to him.

6.In a further interview the defendant gave some evidence or some information about his consumption of the drug.  He consumed ‘Ice’ two to three times a day with no fixed quantity.  He had purchased all the ‘Ice’ a few days ago.  The GBL belonged to him and he consumed it twice a week, 2 millilitres per time.

7.He was a supermarket worker earning $5,500 per month.  The supermarket confirmed that the defendant earned around $4,500 a month. 

8.The street value of the ‘Ice’ was found to be $6,090 and the cocaine is $182.  It would appear that GBL is some form of sexual enhancement medication. 

9.As far as the defendant’s background and antecedents are concerned, these are admitted.  He is now 51 years old, lived with his father and mother and domestic helper.  He has since 2014 suffered from acquired immunodeficiency syndrome.  He confirmed that he was employed by a supermarket.

10.He has a number of previous convictions.  They are almost all related to drugs.  Six previous appearances in court related to drugs starting from 1996 through to most recently in 2018 when the defendant was placed on probation for possession of a dangerous drug.  The conviction on this case puts the defendant in breach of his probation order.

11.The defendant in 2010 was subjected to a drug addiction treatment centre order which means that in that year the defendant was medically examined and found to be a drug dependent.  It would appear that given the conviction for the defendant in 2018 for possession that the defendant’s drug dependency has continued.

12.It is also notable that the defendant has the previous conviction in 2010 for trafficking in a dangerous drug for which he was sent to a drug addiction treatment centre.

13.The defendant puts forward a number of matters in mitigation.  As far as his personal background is concerned, it is advanced that he was living with his 95-year-old father and 85-year-old mother in the premises in Quarry Bay.  He provided filial assistance to them.

14.The defendant as a consequence of his diagnosis with AIDS is in need of long-term medical treatment.

15.The defendant’s drug history is advanced as part of his mitigation.  The defendant has been taking drugs since August of 1996. That is confirmed by his conviction record.  The defendant takes drugs to maintain his mood and the GBL to enhance his sexual interest.

16.The defendant says that the majority of the drugs were for self-consumption.  At the time of his arrest, the defendant said the drugs were for his self-consumption.  The defendant prays in aid of this submission that drug-taking materials or materials used for consumption of drugs were found at his premises, such as drinking straws, plastic bottles and syringes. 

17.Nothing suspicious was found on the defendant’s mobile phone, nor were any record books for drug trafficking found at his premises.

18.The defendant in his record of interview gave detailed evidence about his consumption of drug which he would consume from one to three times a day consuming 0.3 grammes of ‘Ice’.  The quantity of drugs found at the defendant’s home would mean there was enough for about 30 separate doses.

19.He said that the transparent bags found, and electronic scales, were for dividing the drug up into smaller bags so that he could take them out, and also for when sharing with his friends.

20.He attributed the cash to money given to him as lai see.

21.There were a number of matters raised in mitigation, including a number of letters from family and friends which I have read. 

22.The approach to sentencing is as follows. Firstly, looking at the 1st charge, the trafficking in the ‘Ice’, the court is guided by guideline sentencing where the starting point for sentence for a person who possesses up to 10 grammes of the drug is between 3 to 7 years’ imprisonment.  A purely mathematical calculation in this case would lead to a starting point of 6 years and 2 months’ imprisonment.

23.Where it is accepted that a significant portion of the drugs are for the defendant’s own consumption, the court can adjust the sentence to reflect the fact that not all the drugs were for trafficking.  It is not necessary for the sentencing judge to specify the relative amounts or proportions.

24.It is also the case that where a significant portion of the drug is for self-consumption, then a discount of between 10 to 25 per cent from the original starting point can be entertained by the court.

25.As far as the cocaine and GBL possession charge is concerned, there is no guideline sentence for possession of those drugs.

26.In the case of HKSAR v Ko Wai Shing [2020] HKCA 746, it had been said the sentencing for possession of that drug could range from a fine to a term of imprisonment of 12 months.

27.The defendant has advanced in this case that a significant portion of the drugs would be for his own consumption.  He placed that at over 50 per cent. 

28.It would appear from the matters found in the defendant’s home and also other considerations that the defendant can successfully advance that mitigation.

29.The defendant has a long history of drug consumption and has been found to be a drug dependent by the courts.  There were materials for the consumption of drugs such as plastic straws and syringes found in the defendant’s home.

30.The defendant’s account of his own drug-taking is not unreasonable.  The total of drugs found would supply the defendant for about 10 days.  All this supports the defendant’s contention that he would consume a significant portion of the drugs himself.

31.The defendant has also said in his mitigation that he is a social trafficker sharing drugs with his friends.  It would appear that that cannot be successfully advanced as mitigation.  The defendant was in possession of items which a person who is involved in the commercial side of drugs would be in possession of such as the plastic bags and the weighing equipment.

32.The defendant does not have a high monthly income, yet he was in possession of financial resources which would over double his monthly income and also had bought drugs which were in excess of his monthly income.

33.Now, applying those findings and principles to the case that I have in respect of the defendant today, I turn to the 1st charge.  The defendant is found in that case to be trafficking in a sum of 8.87 grammes of the drug ‘Ice’.  Taking all these factors into consideration, I will take a starting point of sentence at 6 years or 72 months’ imprisonment.

34.The defendant is entitled on my finding to a deduction from that starting point for his consumption of a significant portion of the drug, which would lie within the range of 10 to 25 per cent.  There is no necessity for the court to specify the relative amount of proportion. 

35.I will reduce the starting point on that charge by 12 months to reflect this fact.  The starting point on Charge 1 is now 60 months’ imprisonment.  I will reduce that to 40 months’ imprisonment to reflect the defendant’s plea of guilty. 

36.On the 2nd Charge, involves possession of small quantities of cocaine and GBL, I will take a starting point of 6 months’ imprisonment and reduce that to 4 months’ imprisonment for the defendant’s plea of guilty.

37.It would appear to be that the drugs themselves in this case are all part of one transaction.  I will order those sentences to be served concurrently to a total of 40 months’ imprisonment.  There will be no order on the defendant’s breach of probation order.