HKSAR v. Wong on Wah

DCCC388/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 388 OF 2010

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Reasons for Sentence

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1.The defendant pleaded guilty to 2 charges of "Trafficking in a dangerous drug" (Charges 1 and 2). He also faces an additional charge of "Possession of Part I Poison" (Charge 3). The Prosecution agreed to leave Charge 3 in the court file.

Summary of Facts

2.About 9:00 pm on 5 February 2010, the Police commenced a "controlled buy" operation outside No.59 Wellington Street in Central.

3.Posing as a customer, PC 4070 (PW1) phoned a male, who offered to sell him cocaine. Thereafter, the defendant drove a taxi (KG 2170) to the scene to meet PW1. PW1 boarded the taxi, upon which the defendant handed a plastic bag to PW1 saying that there were 20 packets inside (collectively "P1") and asked for $10,000. The defendant also said "As for 'coke', we deliver sufficient weight." PW1 paid the defendant using marked money. The defendant drove forward to No.148 Wellington Street, where the operation turned overt and he was arrested. Under caution, the defendant said "I deliver the 'coke' for others and they are not mine." The marked money was found inside his coat pocket. A Government Chemist confirmed that P1 contained 20 plastic bags containing a total of 5.69 grammes of a solid containing 3.53 grammes of cocaine. This is Charge 1.

4.The taxi driven by the defendant was searched. Inside the cabinet of the right front door, the Police found a plastic bag which contained 14 plastic bags containing suspected cocaine (collectively "P2") and a metallic cigarette case which contained 2 plastic bags containing a total of 115 re-sealable plastic bags. Under further caution, the defendant remained silent. A Government Chemist confirmed that P2 contained 14 plastic bags containing a total of 4.01 grammes of a solid containing 2.67 grammes of cocaine. This is Charge 2.

5.The defendant now admits that he unlawfully trafficked the cocaine specified in Charges 1 and 2.

Mitigation & Sentence

6.The defendant is now 48 and has only 1 previous conviction, which is related to Part I Poison. He is married with a 12-year-old son.

7.Ms. Moosdeen submitted that the defendant used to operate a café in Tsuen Wan. Unfortunately, the business failed in 2007 due to a sudden substantial increase in rent. The defendant has tried to be a responsible tenant and employer by paying off his debt. Regrettably, he was declared bankrupt prior to the present offences. The defendant owed about $1 million in debt and he needs to repay $3,000 per month. The defendant also has an aged mother and an elder sister, who both have various health problems. He contributes to their regular medical expenses.

8.Prior to his arrest, the defendant worked as a taxi driver earning at most $10,000 per month. Shortly before this case, he met someone named "Hung Chai" who solicited his help in delivering drugs. In order to earn some extra money to meet his family expenses, the defendant agreed. Ms. Moosdeen submitted that this is the defendant's 1^st delivery for Hung Chai and he was caught already. His reward depends on the quantity carried by him, and this time was only $1,000.

9.The contents of the mitigation documents are noted. I also note that the family members are supportive.

10.Time after time, the court has expressed in very clear terms that having a sick family member is no mitigating factor for committing a crime. I cannot stress this enough. Furthermore, a clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment. The sentencing tariff for trafficking in cocaine is the same as heroin (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370). For up to 10 grammes, the sentence ranges from 2 to 5 years.

14.A total of 6.20 grammes of cocaine are involved in the present case.  I bear in mind that the overall starting point should be about 4 years.  For Charge 1, I adopt a starting point of 3 years imprisonment.  One-third discount is given for the guilty plea, reducing the sentence to 2 years.  For Charge 2, I adopt a starting point of 2.5 years imprisonment.  One-third discount is given for the guilty plea, reducing the sentence to 20 months.  Apart from his guilty pleas, I see no other mitigating factors which warrant any further discount for either charge.  Hence, the sentence for Charges 1 and 2 are respectively 2 years and 20 months imprisonment.

15.After considering the total quantity of cocaine involved and the totality principle, I order 8 months in Charge 2 to run consecutive to Charge 1, arriving at a total prison term of 32 months for both charges.