HKSAR v. Poon Wai Hung

DCCC 3/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO. 3 OF 2009

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Reasons for Sentence

1.The defendant pleads guilty to 1 charge of trafficking in 19.05 grammes of cocaine.

2.Facts of the case were simple and straight forward: on the evening of 9 November 2008 the police set up a roadblock at Dundas Street near the junction with Ferry Street in Yaumatei. At about 9.45pm the police officers saw a private car bearing registration number plate ND-3307 coming into Dundas Street from Ferry Street. The private car suddenly reversed back into Ferry Street. The roadblock team felt suspicious about the unusual manoeuvre of the vehicle and gave chase.  Police intercepted the vehicle outside no. 22 Ferry Street. Including the driver, there were 3 males on board of the vehicle. The defendant was the front seat passenger.

3.The police searched the vehicle and its occupants.  The driver Hung Wai Yip was found to have HK$6,200 cash on him. The rear seat passenger Kong Wai Lun had cash HK$8,160 with him. The defendant was carrying cash HK$6,337, while another bulk of HK$19,000 cash was found inside the central compartment of the vehicle.

4.Apart from the cash found, the defendant was found to have a small packet of white powder at the waist portion of his trousers. Underneath the defendant’s seat was another bag containing a solid. When cautioned, the defendant said the 2 packets contained cocaine and they were for his own consumption. The defendant further said the other occupants in the vehicle had nothing to do with the drug.

5.The 2 packets of substance were subsequently examined by the government chemist who confirmed both packets contained cocaine. The small packet found inside the defendant’s trousers contained a mixture weighing 1.63 grammes which contained 1.29 grammes of cocaine. The packet found underneath the defendant’s seat was a solid weighing 23.75 grammes which contained 17.76 grammes of cocaine. 

6.In court, the defendant said he intended to share the bulk of cocaine he had with his 5 friends in a dinner party that evening.

7.The defendant, aged 29, is married and has a 2 ½ years old daughter. His wife is a mainland resident who visits Hong Kong on 2 way permits. He worked as a cook earning HK$15,000 per month. In Hong Kong he lives with his parents.

8.It was said in the defendant’s mitigation that he commenced smoking cocaine 6 months prior to his arrest. His daily consumption was 1 to 2 grammes.  He bought the drug in bulk to get a cheaper deal and to minimize the risk of being caught. The defendant bought the bulk of his drugs for HK$18,000 which he intended to share with his 5 friends that evening.

9.The cocaine the defendant possessed comprised of two forms, a small packet in a granular form and the larger pack in a solid form.  The level of concentration of the 2 packets differs: purity of the small packet is roughly 79.14% (1.29g/1.63 g) while purity of the solid is 74.77% (17.76g/23.75g). There was no explanation why the drugs came in  two different forms and were in different purities. There was no separate packaging for the 23.75g solid found underneath his seat.

10.For trafficking in cocaine the sentencing guide can be found in Lau Tak Ming [1990] 2 HKLR 371 and Pedro Nel Rojas [1994] 2 HKCLR 69.

11.A defendant who trafficked in 10 to 50 grammes of cocaine would expect a custodial term of some 5 to 8 years’ imprisonment. 

12.Mr. Justice Stuart-Moore, V-P in Court of Appeal decision of Wong Suet Hau [2002] 1 HKLRD 69 made it clear social trafficking should not be considered as a general basis for reduction of sentence for the evil it brought upon society and the users, be it that the drugs were sold for a profit or shared with no additional financial gain.

13.Personal consumption of part of the drugs for trafficking lowers the overall gravity of the events (see Chan Mung Lung [1992] 2 HKCKR 127, Wong Suet Hau [2002] 1 HKLRD 69). In assessing whether part of the drugs were for personal consumption, the circumstances the court would consider include:-

(a)  the quantity and value of the drugs;

(b)  the packaging of the drugs;

(c)  the circumstances under which the drugs were found;

(d)  whether the D was a habitual user;

(e)  explanation given by the D;

(f)  defendant’s general ability to fund the purchase of the drug; and

(g)  the defendant’s criminal record in relation to previous drug offences.

14.The defendant had 1 previous conviction for possession of a Part I possession back in 2001. This could hardly put him into the category of a persistent offender. 

15.The street value of the bulk of cocaine the defendant possessed was estimated by Senior Inspector Lewis of the Narcotics Bureau to be slightly below HK$22,000. There is no elaboration on whether the cocaine the defendant possessed belongs to the group of cocaine hydrochloride or crack cocaine. There is a difference in opinion between the narcotic officer and the medical officer about the purchase price of the two different forms of cocaine. As this does not have a great impact on my decision, I do not find it necessary to reconcile the differences here, save to say I have adopted the lower value of the 2 groups for the benefit of the defendant.

16.Recommended maximum dosage for medical usage is 400 mg. According to the Consultant Psychiatrist Dr. Lam the dosage by abusers varies. A single dosage of 1.2 gramme would be considered to be fatal. The daily consumption of 1 to 2 grammes, though high, is not impossible.

17.I accept it is possible for the defendant to intend 1/6 of the drugs for his own use. The total quantity the defendant had in his possession for trafficking is 19.05 grammes. The rest of the drugs he intended for his friends would roughly be 15.87 grammes (5/6 of 19.05 grammes).

18.I adopt a starting point of 5 years and 8 months for the trafficking of 19.05 grammes of cocaine. Assuming that the defendant did intend to retain about 1/6 of the drugs for his own consumption, I reduce the starting point to that of 5 years. His strongest mitigating factor is his plea of guilty indicating his remorse. Giving credit for his plea of guilty, indicating his remorse, I reduce his sentence by 1/3 and sentenced him to a term of 3 years and 4 months (60 months x 2/3 = 40 months) instead.