HKSAR v. Wong Ka Ho

DCCC 988/2021

[2022] HKDC 568

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 988 OF 2021

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REASONS FOR SENTENCE

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Introduction

1.The defendant (“D”)  pleaded guilty to 2 counts of Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars of Offence for both charges alleged that on 28 January 2021, at Room No B48, Flat B, 4^th Floor, Wing Cheung Industrial Building, No 58-70 Kwai Cheong Road, Kwai Chung, New Territories (“the premises”), he unlawfully trafficked in a dangerous drug, Charge 1 involved 8.15 grammes of cannabis in herbal form while Charge 2 involved 38,405.52 grammes of cannabis in herbal form.

Facts of Case

2.The Summary of Facts admitted by D indicated that at around 8:29 pm in the evening of 28 January 2021 D was stopped when he was coming out from the premises by the police lying in ambush outside.  D was searched and 1 plastic bag containing 12 transparent re-sealable plastic bags containing the drug as particularized in Charge 1 was found in his left front jacket pocket.  He was arrested and under caution, he admitted that the drugs on him were to be delivered to customers as product samples.

3.Upon further search of the premises, a total of 77 sealed packets containing the drugs as particularized in Charge 2 were found inside 3 large black bags and 1 black plastic bag.  Packaging paraphernalia, including 4 packets of plastic bags, 1 packet of transparent re-sealable plastic bags and a sealing machine were also found inside the premises.  Under caution, D admitted that he was responsible for delivering the drugs to customers in return for a reward of HK$500 per kilogram.

4.There was no other person inside the premises at the time.  The total estimated street value of all the drugs seized was about HK$9,565,000.

5.D was the tenant of the premises since 1 January 2021 at a monthly rental of HK$2,950.

6.In a subsequent video-recorded interview, D further admitted under caution that on the instructions of a person named “Ah Kit” whom he met at a bar in Tsim Sha Tsui, he rented the premises to store drugs and deliver them to customers.  The drugs found were delivered to the premises in late December 2020 on 2 occasions.  On the day of arrest, on the instructions of “Ah Kit”, he was about to deliver the samples found on him to customers.

Personal Background of D

7.D is 32 years old, born in Mainland China on 31 May 1990 and came to HK to join his mother and elder sister in 2001.  His father had passed away when he was very young.  He had received Form 2 education.  His mother is now 71 years old and his elder sister suffers from mental illness.  He is the sole bread-winner of the family and used to work as a casual construction site worker earning about HK$14,000 per month.  However, he was unemployed since November 2020.  He has 1 previous criminal record for Wounding for which he was sentenced to 6 months’ imprisonment.  He was released from prison on 27 June 2019.

Mitigation

8.In mitigation, Mr Cheng for D submitted that D was the sole bread-winner of the family as his mother is of advanced age and his elder sister suffers from mental illness.  He was out of work since November 2020 and committed the offences under financial pressure to cater for the family’s need.  His timely guilty plea and frank admission of the facts are his main mitigation.

9.Mitigation letters by D and his family members confirmed the reasons behind the commission of the offences.  Other mitigation letters submitted showed that D had devoted much of his spare time in local charity work in Kwai Chung, particularly relating to elderly people.

10.Mr Cheng cited a District Court case HKSAR v Wong Chun Yip DCCC 73/2017 and asked the court to pass a lenient sentence on D.

Sentence

11.In AG v Tuen Shui-ming & Another [1995] 2 HKCLR 129, the CA has laid down guidelines for sentencing in trafficking in cannabis.  The quantity of drugs in Charge 1 is under 2,000 grammes, which attracts a sentence of under 16 months while the quantity in Charge 2 is well over 9,000 grammes, which attracts a sentence of 4 years upward.  In the same case the CA also pointed out that guidelines are not straight-jackets but the court should take them into consideration when considering the appropriate sentence for each case.  Further, the CA also pointed out that the concentration of narcotics in cannabis resin, which forms the basis of the guidelines, are about four time higher than when in herbal form.  Therefore, it is proper for the sentencer to reduce the starting point by about 1 year when dealing with cannabis in herbal form (Pages 135-136).

12.This is D’s first drug-related conviction.  He committed the offences when under pressure to cater for the financial needs of his immediate family members, not for himself.  I am prepared to accept this to be a genuine claim.  However, as often pointed out by the CA, in serious offences like trafficking in dangerous drugs, personal circumstances have very little bearing on the sentence to be imposed on the offender.

13.Taking all relevant matters into consideration, I am prepared to be as lenient as possible to D.  For Charge 1, I adopt a starting point of 3 months, reducing it by one third to 2 months for the timely guilty plea.  For Charge 2, I adopt a starting point of 5 years, reducing it by one third to 3 years and 4 months for the timely guilty plea.  The 2 offences were part and parcel of the same criminal conduct and the quantity of drugs involved in Charge 1 does not add anything to Charge 2.  I order the sentences for the 2 charges to run concurrently.  For the 2 offences D is facing, he is sentenced to a total of 3 years and 4 months.