HKSAR V Wong Pik Fung

DCCC 1171/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1171 OF 2012

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved are ICE and heroin.

Summary of Facts

2.About 1:00 am on 26 September 2012, PC 4977 (PW1) and his colleagues were lying in ambush outside Room B, 5^th Floor, Po Hing Building, No.12 Boundary Street, Mongkok ("the Flat").  They saw the defendant coming out from the Flat.  PW1 intercepted him to conduct a search.  The following items were found in the defendant's right front trouser pocket :-

(i) 1 resealable transparent plastic bag which contained 1.78 grammes of a crystalline solid containing 1.73 grammes of methamphetamine hydrochloride;

(ii) 1 resealable transparent plastic bag which contained 3.30 grammes of a crystalline solid containing 3.21 grammes of methamphetamine hydrochloride; and

(iii) 1 resealable transparent plastic bag which contained 3 packets consisting of blue plastic wrappings which contained a total of 1.52 grammes of a mixture containing 0.54 gramme of heroin hydrochloride.

3.Under caution, the defendant said "Sir, the "four chai" is for my consumption, whereas the ICE is to be delivered to someone downstairs for gain of several hundred dollars. Please give me a chance." 

4.Thereafter, the defendant was escorted back to the Flat for a house search.  The following items were found inside a bedroom :-

(i) 1 transparent plastic box;

(ii) 1 lighter;

(iii) 1 electronic scale;

(iv) 1 cutter;

(v) 1 resealable transparent plastic bag containing 1 pile of plastic sheets;

(vi) 1 pile of blue plastic wrappings with a metal wire; and

(vii) 1 resealable transparent plastic bag with a red line containing 1 pile of plastic sheets.

5.In his video-recorded interview, the defendant claimed that both the heroin and ICE were for his own consumption.  He was employed as a delivery worker by a restaurant located at Boundary Street, earning about $300 per day.  He also claimed that he has a habit of taking heroin and ICE and would spend over $300 on drugs each month.

Mitigation & Sentence

6.The defendant is now 34.  He has 14 conviction records, out of which 2 are drug-related involving 1 offence of "simple possession" and 2 offences of "trafficking".  His last conviction took place in December 2008 and he was released in March 2009.

7.Defence counsel Mr. CHAN gave a detailed account of the background events which led to the present offence.  I need not repeat them here.  In short, I was told that the defendant got married in the mainland in 2010.  At some point, he was arrested in the mainland for consuming drugs, and was sent to some type of drug addiction treatment institution.  The defendant was released in August 2012, and found his wife disappeared.  Having lost his job and wife, the defendant returned to Hong Kong and started to consume drugs again.

8.Owing to various reasons, the defendant had no place to stay in Hong Kong.  He therefore moved into the Flat, which is his friend's place.  The Flat was occupied by a couple who are drug addicts.  The defendant did not need to pay rent and the couple allowed him to eat there. The defendant had no money so he delivered drugs as a type of pay back.  At the time of the offence, the defendant was unemployed.

9.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. The defendant is a Hong Kong resident and has been to prison in Hong Kong before.  I am sure he knows how and where to seek help if he needs a job, a place to stay and money to buy food.  All he had to do was to let others help him.  Moreover, 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.

10.The heroin found in this case is of a negligible quantity (only 0.54 gramme).  I would not, for the purpose of sentencing, take into account of it, because when applying the "combined approach" for cocktail drugs[1], the impact of the heroin on the length of the sentence is also negligible.

11.The Court of Appeal has laid down clear sentencing tariffs for trafficking in ICE (see A-G v CHING Kwok-hung [1991] 2 HKLR 125).  For up to 10 grammes, the sentence ranges from 3 to 7 years' imprisonment.  In the present case, the defendant trafficked in 4.94 grammes of ICE.  I adopt a starting point of 5 years' imprisonment.  The usual one-third discount is given for his guilty plea, reducing the sentence to 40 months. Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence I pass is 40 months' imprisonment.