HKSAR v. Wu Po Wing

DCCC 736/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 736 OF 2013

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Reasons for Sentence

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1.The defendant pleads guilty to three charges: Charge 1, possession of 0.82 gramme of ketamine; Charges 2 and 3, trafficking in 0.29 gramme and 6.37 grammes of cocaine respectively.

2.In summary, at about 1526 hours on 17 June 2013, police officers were conducting observation near Pok Man House, Pok Hong Estate, Shatin, when they spotted the defendant sitting in the driver’s seat of a private car (“the vehicle”).  A male (“the arrested person”) approached the vehicle.  Something then changed hands between the defendant and the arrested person through the opened window next to the driver’s seat.  While the arrested person was leaving, police officers approached the defendant and found on the carpet in front of the vehicle’s driver’s seat a transparent plastic bag containing dangerous drug named in Charge 1. 

3.Under caution, the defendant said that it was ketamine and was for his own consumption (Charge 1). 

4.Meanwhile, the arrested person was also intercepted by the police.  Upon search, two transparent plastic bags containing dangerous drugs named in Charge 2, wrapped in three $100 banknotes were found from the arrested person. 

5.The defendant was further arrested and cautioned for trafficking in a dangerous drug for having sold it to the arrested person. The defendant replied that the arrested person was his friend and he sold it to him (Charge 2).

6.The defendant and the arrested person were taken back to police station for further investigation.

7.On the same day while conducting a body search on the defendant, 38 transparent plastic bags containing dangerous drugs named in Charge 3, underneath the defendant’s underwear were found (Charge 3). 

8.At the time of arrest, the defendant had with him HK$7,650 and three mobile phones. 

9.The street value of the dangerous drugs named in Charge 3 is about $8,000.

Background and mitigation

10.The defendant is a 37-year-old single man.  In mitigation, Mr Chan, solicitor for the defendant, says the defendant received education up to Form 3.  At the time of the offences, he worked as a taxi driver earning about $8,000 a month.

11.As the defendant had to pay compensation to the owner of the taxi hired by the defendant for damages caused in a traffic accident and also to support his father and younger brother, the defendant faced heavy financial pressure and hence the trafficking offences were committed.

12.He committed Charge 1 because he was in great sorrow for his mother’s recent death. 

13.Relying on HKSAR v Wong To [2001] 4 HKC 499, Mr Chan asks the court to pass a concurrent sentence for Charges 2 and 3. For Charge 1, he further submits that a starting point should be about 2 to 3 months. 

14.Mr Chan refers me to HKSAR v Ip Nga Tick [2012] HKCU 1886 where the defendant pleaded guilty to a charge of trafficking in 9.36 grammes of cocaine and possession of 6.06 grammes of ketamine. 

Reasons for sentence

15.Trafficking in dangerous drug is a serious offence. The Court of Appeal has laid down guideline for trafficking in dangerous drug and equated cocaine with heroin for sentencing purpose (see AG v Rojas [1994] 2 HKCLR 69).

16.In R v Lau Tak Ming [1990] 2 HKLR 370, the Court of Appeal laid down guidelines for trafficking in heroin where a quantity of narcotic is up to 10 grammes, the sentence should range between 2 and 5 years’ imprisonment. 

17.In the present case and given the proximity of the two offences in Charges 2 and 3 in time and place, I would apply the principle in HKSAR v Wong To, the case referred to me by Mr Chan, and HKSAR v Chow Yu Chi CACC359/2000, to adopt a global starting point for Charges 2 and 3 and order them to run concurrently. 

18.The total narcotics in Charges 2 and 3 amount to 6.66 grammes of cocaine.  It is recognized that the sentencing band is not to be applied in a mathematical way. 

19.Having considered HKSAR v Cheung Wai Heung(張惠香) CACC258/2002 and Secretary for Justice v Yeung Chung(楊忠) CAAR3/2002, I adopt 3 years and 9 months’ imprisonment as the global starting point. 

20.The defendant has two previous convictions for possession of dangerous drugs.  He was in possession of the ketamine in Charge 1 at the time when he was trafficking the drugs in Charge 2.  There was therefore also a latent risk factor to be considered.

21.I have considered the nature of ketamine as said in Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323, the small quantity in this case and the history of addiction of the defendant.

22.On Charge 1, I adopt 6 months’ imprisonment as the starting point.  The defendant can have one-third reduction in the sentences for his plea of guilty.  Apart from this, I cannot find any other mitigating factors.

23.Totality has to be considered.  I would agree with Mr Chan that the sentence in Charge 1 can run partly consecutively to the sentences in the trafficking charges.

24.The defendant is sentenced as follows:  Charge 1, 4 months’ imprisonment; Charge 2, 2½ years’ imprisonment; Charge 3, 2½ years’ imprisonment, run concurrently with the sentence in Charge 2.

25.Having considered the principle of totality, I order 2 months of the sentence in Charge 1 to run consecutively to and the rest concurrently with the overall sentences in Charges 2 and 3.  The total term of imprisonment is therefore 2 years and 8 months.