HKSAR v. Wong Wai Chun

DCCC 1119/2021

[2022] HKDC 951

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1119 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 (1^st charge), and was so convicted.

2.As for the 2^nd charge, possession of an apparatus fit and intended for the inhalation of a dangerous drug, contrary to section 36(1)  and (2)  of the Dangerous Drugs Ordinance, Cap 134, the same is left on the court file and not to be proceeded with without leave of the court.

Facts

3.In the evening hours on 1 September 2021, police officers were on duty in the vicinity of Room 2103, Kwai Wah House, Lower Ngau Tau Kok Estate, Ngau Tau Kok (“the Flat”).

4.At about 2040 hours, a male came to the Flat and the defendant opened the door for him.  Police officers immediately came up and revealed their police identities.  The male and the defendant were intercepted.  The defendant was the only person in the Flat.  The officers entered the Flat and conducted a house search with a search warrant.

5.Upon search of the living room, the following items were found on a wooden desk, including 3 plastic containers or bags containing altogether 16.34 grammes of a crystalline solid containing 14.86 grammes of methamphetamine hydrochloride, an inhaling device for dangerous drugs, a lighter, 2 mobile phones, a key and a wallet containing cash of $2,140. 

6.In one of the bedrooms, the following were found, namely, a green plate, an electronic scale, 5 plastic bags, a plastic spoon, a straw, a plastic clip, a glass pipe and a plate in golden colour.

7.At 2132 hours, the defendant was arrested for trafficking in a dangerous drug and possession of instrument fit for inhaling drugs.  Under caution, he said that the “pork” was for his own consumption. 

8.In a subsequent cautioned video-recorded interview, the defendant said, inter alia, that:-

(a)  The “pork”, as mentioned by the defendant, meant ICE. The defendant bought the dangerous drugs from someone in Mongkok at the price of $6,000;

(b)  All the dangerous drugs were for his own consumption. He has been abusing ICE for 10 years and he used to take 0.7 grammes each time;

(c)  The defendant had one key to the Flat for opening the gate;

(d)  The defendant was jobless but previously engaged in a casual job. The wallet and the cash of $2,140 belonged to him.

9.The estimated street value for the 14.86 grammes of ICE was $10,506.02.

10.At all material times, the defendant unlawfully trafficked the drugs in question and he has in his possession apparatus fit for inhalation of methamphetamine.

Criminal Record

11.The defendant had 4 previous record involving convictions of 4 charges, one of which is drug-related.  He was last sent to DATC and was released in April 2022.

Mitigation

12.The defendant is aged 32.  He is single.  He lives with his grandmother who is aged 82.  He worked as a decoration worker and earned about $15,000 per month but he ceased working since August 2021.

13.Defence counsel submitted that around half of the ICE seized is for the defendant’s own consumption and that at the material time, the defendant consumed around 0.7 grammes of ICE per day.  Accordingly, half of the ICE seized was enough for the defendant’s 10 days’ consumption.  It was also submitted on behalf of the defendant that the other half of the ICE seized would be sold to others in order to support the defendant’s own drug addiction habit. 

14.This court has indicated to defence counsel that the court has reservation to accept this contention and is willing to conduct a Newton hearing on the issue.  Defence counsel, after taking instructions, informed the court that the defendant did not wish to proceed to the Newton hearing. 

15.Defence counsel submitted that the estimated street value of the ICE was around $10,500; the ICE was found at the residential address of which only the defendant and another person had keys; the defendant was at all times a drug addict; he explained to the police that all drugs was for his own consumption when he was arrested; and he trafficked the drugs to support his own drug addiction habit.

16.Defence counsel referred this court to the cases of Secretary for Justice v Chan Chun Fai [2011] 3 HKLRD 116 and HKSAR v Cheung Wai Man [2019] 1 HKLRD 817.  Defence counsel urged this court for a sentencing discount of between 10% and 25%, considering that half of the ICE was for the defendant’s own consumption.

17.In addition, he also asked this court to afford the defendant sentencing discount by reason of the defendant’s guilty plea.  He conceded that the sentencing starting point for trafficking this amount of ICE is 86.9 months’ imprisonment.  He asked this court to deal with the defendant leniently.  He also handed to court the mitigation letter from the defendant.

Discussion

18.On conviction upon indictment, the maximum sentence for the 1^st charge offence is a fine of $5 million and imprisonment for life.

19.This court agrees, as submitted by defence counsel, that relying on the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, following the guideline in the Court of Appeal, the appropriate sentencing starting point for trafficking 14.86 grammes of ICE would be 86.9 months’ imprisonment.

20.Although defence counsel has stated that half of the drugs was for the defendant’s own consumption, as this court has indicated during the hearing, this court does not accept that contention.

21.Personal background of the defendant seldom affords the defendant a sentencing discount when faced with conviction of trafficking in a dangerous drug. 

22.The defendant has one drug-related offence conviction in the past but this court is not going to enhance the sentencing starting point.

23.By reason of the defendant’s guilty plea, he is entitled to one-third sentencing discount which brings the sentence to 57 months and 27 days’ imprisonment.  This court also accepts that the defendant is a drug addict and he did use a small part of the drugs in question for his own consumption.  This court is willing to further afford him sentencing discount of 4 months and 27 days’ imprisonment.

24.The defendant’s letter in mitigation clearly demonstrated his remorse, but it is well established by authorities that remorse of the defendant has been subsumed in the one-third sentencing discount by reason of his guilty plea. 

25.Accordingly, the defendant is sentenced to 53 months’ imprisonment for the 1^st charge.