Inside the bags, the officers found 25 resealable bags containing 580 grammes of a solid containing 504 grammes of cocaine. Mr Wong was arrested and, under caution, admitted that the substance was drugs and the drugs belonged to him. He asserted they were for his personal consumption.
In the course of the search, officers noted a utility bill connected to Room 703, 7th Floor, Block D of this estate. The officers also noticed keys and an Amoy Gardens access card in the possession of Mr Wong. Mr Wong was taken away by the officers and taken to the address that I have just mentioned for a search.
In the bedroom of that address to which Mr Wong was taken, officers found a plastic box containing 400 grammes of a solid containing 356 grammes of cocaine, and a resealable bag containing 331 grammes of a powder containing phenacetin, which is a Part I poison. The officers also found some empty resealable bags, two electronic scales with traces of cocaine, a sealing machine and some empty tinfoil teabags.
Mr Wong was arrested and cautioned as a result of these discoveries and admitted that the drugs that were found belonged to him. Again, he asserted the drugs were for his personal consumption, but added that the tools that the officers seized were for packaging and that they were his.
Other kitchen paraphernalia found in the premises contained traces of cocaine.
Later, the Customs and Excise officers invited Mr Wong to participate in a video recorded interview. Mr Wong declined to do so. Further investigation revealed that the left middle fingerprint of Mr Wong was found on the inside of the plastic box containing the 18 bags of cocaine to which reference has earlier been made. The property agent handling the lease of the premises confirmed that Mr Wong rented the premises for a monthly rental of $14,500.
Mr Wong was taken before a magistrate and charged with offences in relation to the cocaine found by the officer. On 16 September 2019, before Mr Colin Wong, sitting as a permanent magistrate in the Eastern Magistrates’ Court, Mr Wong was committed for sentence to this court following his plea of guilty. In the course of those proceedings, he admitted a Summary of Facts, which reflects the outline of facts to which reference has just been made.
In addition, Mr Wong admitted that the street value of the dangerous drugs seized from him amounted to $1.17 million. The Summary of Facts admitted by Mr Wong admit and accept he possessed the cocaine seized by the Customs and Excise officers for the purpose of unlawful trafficking.
The charges on which Mr Wong was committed to this court allege the possession for unlawful trafficking of the cocaine seized from him when he was intercepted by Customs officers on the 3rd Floor, Block D, Amoy Gardens in Ngau Tau Kok Road. That amounts to a solid weighing 580 grammes containing 504 grammes of cocaine. The 2nd charge on which he has been committed for sentence alleges the possession for unlawful trafficking of 400 grammes of a solid containing 356 grammes of cocaine.
In this court, Mr Wong confirmed his admission of the facts.
Background, antecedents and mitigation
He is the holder of a Hong Kong identification card. He was born in Hong Kong. He is now 33 years of age. He lives in a private flat in Tuen Mun. He has a younger brother and a younger sister.
Mr Wong was educated up to Form 3.
He has a criminal record dating between 2001 and 2011. None of the previous convictions related to drugs in any way.
The submissions in mitigation powerfully advanced by Miss Lee, and the letters from various persons provide an insight into the circumstances in which this crime was committed, and some insight into the nature of the offender himself. The accused entered into a relationship with a woman by the name of Ms Lai, who at the time of that relationship, had two boys, aged 11 and 8. This couple now have a baby girl aged just over 2 years. The accused lived with his mother in a residence in Tuen Mun, but he spends a great deal of his time with Ms Lai and the three children. Although he is the natural father of one of the three children, he treats the other two as a parent, and I am informed and accepted without reservation that they regard him that way as well. Indeed, as I will shortly mention, there is powerfully evidence for that.
The letters I have received from the mother of the accused, the father of the accused, Ms Lai and the eldest son, are very, very moving. I have read them and it would be impossible not to be touched by them. I am also very grateful for the drawing that has been supplied by the second son, Tin-chi. Not only is Tin-chi a budding artist, his words to his father could not fail to move the hardest heart. Further, I have also received a letter from the former employer of the accused. In that letter, the employer describes the accused as “honest and trustworthy, hard-working and responsible, with rigorous and conscientious attitude, and that is rare in the staff that he has”. The employer said in the letter that he placed the accused in a position of trust.
Against that background, the tragedy of the accused, once again, a tragedy brought about by drugs is brought into the sharpest of focus. Just when he should be strengthening his relationship with Ms Lai and their children with all the difficulties (but with all the rewards as well), he is going to spend many years in prison just when he is needed elsewhere. He had not a very encouraging past. He seems to have got himself together and was on the straight and narrow, but sadly slipped off that path. He did so, as I have already mentioned, just when he was needed most. I pay tribute to the powerful mitigation advanced by Miss Lee. It is no diminution of those submissions to say that she had powerful material with which to work. She certainly has not let her client down. Although it is probably not the perfect place in these reasons to note this, I also pay tribute to the thoughtful and principled submissions of Miss Chan for the prosecution. If anyone wanted to know how good lawyers contribute to the outcome of a case, they would do well to have sat in on this case.
Sentencing principles
Sentencing for Trafficking in cocaine
For many years, the community of Hong Kong has taken a severe view of drug trafficking - particularly in relation to drugs such as cocaine. It is easy to see why. This drug has terrible consequences for the individual. It is addictive. Ridding oneself of that addiction is, to say the least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to cocaine is fraught with instances of disappointment. However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who have become addicted to these drugs. There are consequences - sometimes serious ones - for families of those who become addicted to cocaine.
The view of the community is reflected in the maximum sentence for a section 4 of the Dangerous Drugs Ordinance. That provides for convictions on indictment a maximum sentence of life in prison or a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs, the subject of the charge in this case.
The source of guidelines in relation to trafficking in cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming & Other [1990] 2 HKLR 370. In Attorney General v Rojas [1994] 1 HKC 342 and R v Chang Chen Liu Sa [1994] 3 HKC 685. The court declared that the guidelines in R v Lau Tak Ming & Other (Above) are appropriate for cocaine. The correctness of guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437. Indeed, in Abdallah, the Court of Appeal considered the position for trafficking in amounts greater than 600 grammes of cocaine.
Starting point
One possible basis for sentence is to aggregate the two amounts of cocaine and the aggregate is 840 grammes. The appropriate sentencing band in Abdallah (above) is for seizures between 600 grammes and 1,200 grammes, that is, 20 to 23 years’ imprisonment. That outcome would result in a sentence of 21 years.
The only other option would be to sentence separately for each amount. On that premise, the starting point for Count 1 (504 grammes) would be 17 years and 6 months; and the starting point for Count 2 (336 grammes) would be 14 years and 2 months. If that was ordered to be consecutive then the result would be a sentence of 31 years and 8 months. That would be wrong on many levels: It would be a crushing sentence; and it misses the point of how close in time the seizures were and the implicit reality he was carrying drugs and he was storing them in another place. Those are appropriate starting points for each count, but they would have to be adjusted to accord to the accused a just outcome.
There was a submission that some of these drugs were for self-consumption. I reject that submission. I have taken into the account the fact that the accused, from testing in Lai Chi Kok Reception Centre, did have cocaine present in his urine. However, when one looks at the mode of carrying these drugs, and the mode of storage, it is redolent of actual trafficking and there is no suggestion, in my view, of self-consumption and I am sure that whatever was in the possession of the accused in these two places was not for self-consumption. That is not to say he was not an addict or a consumer of cocaine, just not this cocaine.
Discount for plea of guilty
The well-accepted principles of sentencing recognise that where an accused person pleads guilty at the earliest practicable moment, that a discount from the appropriate starting point of 33 per cent would be applicable.
There are other factors which compel a further discount.
Application of sentencing principles
On any view, this is a substantial quantity of cocaine and the cocaine was plainly possessed for unlawful trafficking. An important component of the mitigation available to Mr Wong is his plea of guilty. That has saved the court and the community a substantial amount of time and reflects the remorse of Mr Wong. There are other aspects of mitigation which are compelling in this case and the ultimate discount will be a discount of 45 per cent from the appropriate starting point.
The conduct of the accused was, on any metric, monumentally stupid. This court can only express the hope that, given the family circumstances of the accused, he will take every advantage while in prison of the skills and training opportunities offered by the Hong Kong prison system and will work as hard as he humanly can towards as early a release as possible.
The starting points for each count would, as I have already indicated, produce a totality which is unjust in the circumstances of this particular case and not well-connected with the realities of the situation. It seems to me that the result which would be produced by aggregating the amounts would have produced an appropriate starting point, and that is what I propose to do by imposing partly concurrent and partly consecutive sentences to reflect an actual starting point of 21 years. On this basis, the sentence would have been 11 years and 6 months.
The orders of the court are as follows:
(1) On Count 1, on the basis of a starting point of 17 years and 6 months, I reduce that by 45 per cent and that produces a sentence of 9 years and 7 months;
(2) On Count 2, on the basis of a starting point of 14 years and 2 months, I reduce that by 45 per cent, which produces a sentence of 7 years and 9 months.
In my view, if the sentences were to be served consecutively, the totality would be too great. Accordingly, I order that Count 2 be served partly consecutively and partly concurrently as follows: 1 year and 11 months of Count 2 to be served consecutively to the sentence which I have imposed on Count 1, which would make
an effective total of 11 years and 6 months and that is the order of the court.