HKSAR v. Wong Wai Wah

DCCC 872/2022

[2024] HKDC 688

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 872 OF 2022

________________________

________________________

________________________

Reasons for Sentence

________________________

Background

1.The defendant faced 3 charges.  On the first day of the trial, he pleaded guilty to Charge 2, possession of dangerous drugs, and Charge 3, possession of apparatus fit and intended for taking drugs.  He was convicted accordingly. 

2.On the other hand, in relation to Charge 1, the defendant pleaded guilty to possession of, but not trafficking in, the drugs as particularised.  The prosecution did not accept such a plea and a trial ensued. 

3.The Reasons for verdict relating to Charge 1 was delivered today.  The defendant was convicted of Charge 1, on top of his guilty pleas to the remaining 2 charges. 

4.The defendant admitted the Summary of Facts as prepared by the prosecution dated 5 February 2024.  Upon my direction dated 20 February 2024, the prosecutor submitted an amended charge sheet dated 26 February.  The Defence wrote on 26 February 2024, saying that they have no objection to the proposed amendment.  An amended Summary of Facts was prepared vide a letter dated 29 February 2024. 

5.Accordingly, I directed the defendant to re-enter his plea to the Charges 2 and 3.  The defendant admitted the Amended Summary of Facts relating to these 2 charges. 

Amended Summary of Facts relating to Charges 2 and 3

Charge 2

6.On 13 April 2022, police officers in plainclothes mounted an operation near Pok Tai House, Shatin (the residence of the defendant).  At about 8:29 pm, DPC 24048 saw the defendant approaching a private car which was with hazard warning lights on.  DPC 24048 saw the defendant getting on the driver seat of the car and closed the door.  DPC 24048 and DPC 25627 then approached the defendant. 

7.Upon body search and from the defendant’s bag, the police found a cigarette box in which there were 2 handrolled cigarettes containing 0.19 grammes and 0.24 grammes of cannabis in herbal form respectively. These are court exhibit P3.  No items of evidential value was found in the car. 

8.Upon caution, the defendant stated that the 2 rolls of cannabis were for self-consumption. 

9.A house search of the defendant’s residence at Room 1514, Pok Tai House, Pok Hang Estate, 6 Sha Kok Street, Shatin was conducted. 

10.The following items were seized from the bedroom:

(1)  a glass bottle containing 0.09 grammes of methamphetamine within 63 millilitres of a liquid, Exhibit P12;

(2)  a glass tube containing 0.09 grammes of methamphetamine within 0.14 grammes of a solid, Exhibit P13A;

(3)  glass tubes both containing methamphetamine within solids totalling 0.09 grammes, Exhibit P13B and 13C;

(4)  a transparent plastic bag containing 2.55 grammes of herbal cannabis, Exhibit P14;

(5)  a silver metal pipe containing 0.10 grammes of herbal cannabis, Exhibit P15;

(6)  a grinder containing 0.10 grammes of herbal cannabis, Exhibit P16.

Charge 3

11.In the said bedroom, the following items were seized:

(1)  three glass bottles, Exhibit P10, P11 and P12;

(2)  three glass tubes and funnels, Exhibit P13A to P13C;

(3)  a metal pipe, Exhibit P15.

12.All these items were fit and intended for the inhalation of dangerous drugs, namely, methamphetamine and cannabis. 

13.Upon caution, the defendant admitted that he consumed dangerous drug and explained, inter alia, how the said items listed in Charge 3 were used in that process and what effects of the drugs had upon him. Ice and cannabis were found inside the master room along with residues of ice and cannabis in the seized apparatus. 

Mitigation

14.Defence counsel tendered a mitigation bundle together with an 11-page written submission today. 

15.The defendant was born in Hong Kong in January 1970 and educated up to Form 1 level.  The defendant worked as a renovation worker and earned an average wage of HK$20,000.  It was said that the defendant has been a drug addict for decades.  The Defence relied on the case HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 in the way the sentence should be approached, and also comes to the view that “with reference to the conversion test, it is submitted that the starting point for Charge 1 should be around 6 years 5 months” (paragraph 12 of the mitigation submission).  Defence counsel submitted that the defendant’s previous convictions should not be taken as an aggravating feature.  As the defendant was a drug user for a long time, defence counsel submitted that the court should find a significant portion of the drugs under Charge 1 were for D’s self-consumption (paragraph 19 of the submission). It is unnecessary for the sentencing judge to specify the relative amount or proportions for self-consumption except in the very broadest of terms (paragraph 19.2 of the submission). 

16.Defence counsel also said the defendant had conducted the trial sensibly and agreed to a significant part of the prosecution case, and the defendant’s sensible conduct justified a further reduction (paragraph 20.4 of the submission). 

17.In relation to Charge 2, defence counsel said there is no guideline for the starting point for possession of herbal cannabis and suggested a short sentence would be appropriate (paragraph 24 of the submission). 

18.As regards Charge 3, a sentence of 3 months’ imprisonment was the accepted tariff and there is nothing that warrants an enhancement in the present case (paragraph 27 and 28 of the submission). 

19.To conclude, the defence counsel said “D has clearly shown remorse and is prepared to take responsibility for his action” and the sentence for Charges 2 and 3 should run wholly concurrently with that of Charge 1 (paragraph 32 and 33 of the submission).  

Sentence

20.This is a simple dangerous drug case, even though there are rooms for improvement in the way this case was prepared and handled by both parties. 

21.The defendant was convicted upon his own plea relating to Charges 2 and 3, to which he will have one-third discount in sentence.  The defendant was convicted of Charge 1 after trial.  Because of the sentence to be imposed on the defendant, I will not call for any DATC report. 

22.On the other hand, I cannot see any substantial mitigating factors on behalf of the defendant.  The fact that he agreed with most of the prosecution case stemmed from the fact that he offered to plead guilty to simple possession under Charge 1. 

23.The defendant had a total of 56 convictions since 1988 with eight similar.  The defendant was convicted of trafficking in a dangerous drug in High Court back in June 2006 and was sentenced to 4 years and 8 months. 

24.According to the sentencing guidelines, for cases relating to trafficking in up to 10 grammes of cocaine, the starting point is from 2 to 5 years whereas for trafficking in up to 10 grammes of ice, from 3 to 7 years.  For possession of ice, a starting point of between 1 year and 18 months’ imprisonment is called for, if there is no DATC order.  The court can take into account of the latent risk factor. 

25.As regards Charge 1, there are two kinds of dangerous drug, namely, cocaine and Ice.  The main dangerous drug is ice which amounts to 8.86 grammes.  I will use this quantity as the basis for sentence without resorting to the 3 tests for mixed drugs.  I adopt a starting point of 6 years and 3 months.  Given the existence of cocaine, I will enhance the sentence by 3 months to 6½ years.  On the other hand, I will take into account of the possibility that some ice or cocaine may be for the defendant’s self-consumption.  As such, I reduce the sentence by 3 months to 6 years and 3 months. 

26.As regards Charge 2, I adopt a starting point of 3 months, and with his plea, the sentence is reduced to 2 months. For Charge 3, I adopt a starting point of 12 weeks and with his plea, reduced to 8 weeks. 

27.I order that all the sentences relating to these 3 charges are to be served concurrently.  That means I sentence the defendant to a jail term of 6 years and 3 months.