HKSAR v. Wong Ka Wai

DCCC 299/2024

[2025] HKDC 454

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 299 OF 2024

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REASONS FOR SENTENCE

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1.The defendant is charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134[1].

2.The defendant pleaded guilty to the charge, admitted the summary of facts and was convicted on his own plea.

Facts

3.The facts admitted by the defendant reveal that on 25 October 2023 at around 0350 hours, police officers were conducting anti-crime patrol in the Luen Wo Hui area in Fanling.  The officers found the headlamps, engine and hazard warning lights of a private car bearing registration number UD6773 (“the vehicle”)  were turned on, and the defendant was at the driver’s seat.  His head was facing down and his hands were seen moving near his inner thigh.

4.The defendant ignored the police officer’s knock on the vehicle window. It was not until the police officer flashed his torch at the defendant and gave a verbal warning that the defendant looked up at the police officer and dropped an object that he was holding in his right hand onto the floor of the driver’s seat.

5.Upon initial enquiry, the defendant admitted that the object he dropped onto the floor was cocaine owned by him.  Police found a transparent re-sealable plastic bag with pink handwriting containing 28 small transparent re-sealable plastic bags containing white solids.  The white solids were seized and later confirmed to be 6.12 grammes of a solid containing 5.01 grammes of cocaine.

6.The defendant was arrested for the offence of possession of a dangerous drug.  Under caution, the defendant admitted to the possession of the cocaine and claimed that the dangerous drugs were for self-consumption.  A total amount of HK$41,890 cash was found in the vehicle and two iPhones were found on the defendant.

7.The average retail price for crack cocaine in October 2023 was HK$1,063 per gramme.  The estimated value of the dangerous drugs seized was around HK$6,505.56.

8.At the time of the offence, the defendant without lawful excuse unlawfully trafficked in dangerous drugs, namely 5.01 grammes of cocaine.

Previous convictions

9.The defendant has appeared in court on 7 occasions and was convicted of 9 charges.  3 of the previous convictions involved the possession of dangerous drugs.

Personal background and mitigation

10.The defendant was born in Hong Kong.  He was 29 years of age at the time of offence.  He lived with his family including his father, a retiree and his mother, a housewife, in Fanling.  The defendant was the bread winner of the family.

11.The defendant left school before the completion of secondary Form 3. He engaged in casual employment, working as an unloading worker in the logistics industry.  His income was dependent upon the amount of work assigned to him, and he earned around HK$60,000 to HK$70,000 per month.

12.In mitigation, the defence submitted that the defendant committed the offence out of stupidity as he wanted to earn “quick money”.  Since his remand, he deeply regretted his transgressions and felt guilt for worrying his family. The defendant indicated that he “would rehabilitate and return to the society in order to support his parents”.

Sentence

13.I have considered the nature and quantity of the dangerous drugs, the mitigation advanced by defence counsel and the authorities submitted by the defence.

14.The trafficking of dangerous drugs is a very serious offence.  The Court of Appeal laid down the tariffs for trafficking in cocaine, namely a term of imprisonment of between 2 to 5 years after trial for trafficking a quantity of cocaine below 10 grammes (see HKSAR v Huang Ruifang CACC 106/2022).  In the instant case, the amount of cocaine trafficked was 5.01 grammes.  For this quantity I would consider a starting point of 42 months.

15.According to the facts admitted, the defendant was found in a vehicle holding the dangerous drugs in his hand before dropping it on the floor of the vehicle.  Under the circumstance, there was no evidence to suggest that the defendant’s role and/or culpability was any higher than that of the lowest ranking courier.

Self-consumption

16.In mitigation, it was submitted that part of the dangerous drugs trafficked was for the defendant’s own consumption.  It was the defendant’s case that he was preparing to insert some cocaine into his cigarette for inhaling when the police approached his vehicle.  Under caution, he admitted that the cocaine seized was for his own consumption.　　The defence could not quantify the actual amount of cocaine for self-consumption, however, the court was asked to consider 10% of the seized drug to be for such purpose.

17.In determining the issue of self-consumption.  I have considered the applicable principles in the authorities of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.  It was recognised that self-consumption could be a mitigating factor, however, the amount must be of “a significant proportion” of the dangerous drug seized, otherwise any reduction of sentence would be minimal or of practically very little difference.

18.Defence counsel confirmed it was not their position that a significant part of the drug seized was for the defendant’s own consumption, rather that only part of it was for such purpose.

19.The amount of cocaine trafficked in the present case was 5.01 grammes carrying a street value of HK$6,505.56, not an amount that the defendant could not afford financially.  The defendant had 3 previous　convictions for the possession of dangerous drugs, and had been sentenced to the Drug Addiction Treatment Centre and to imprisonment.  The defendant admitted under caution immediately after his arrest that the seized drugs were for his own consumption.  The results of the urine test from the urine sample collected from the defendant after his arrest on 27 October 2023 indicated a positive result for cocaine.  

20.The court could not rule out that the defendant was a drug addict at the time of the offence, and that part of the seized drug was for his own consumption. However, there was no basis to suggest that a significant amount or 10% of the seized drugs was for self-consumption.

21.I have also considered the fact that simple possession of dangerous drugs itself carries a term of imprisonment, and where appropriate, the enhancement of sentence for latent risk factor.  I adopt 39 months as the starting point.

22.The defendant is entitled to one third deduction for his guilty plea.  I sentence the defendant to 26 months’ imprisonment.