HKSAR v. Wong Kwan Ching
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DCCC 916/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 916 OF 2013 --------------------------
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-------------------------------------- REASONS FOR SENTENCE -------------------------------------- 1.The defendant appeared before me this morning and pleaded guilty to a single charge of “trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 2.The particulars of offence avers that the defendant on 18 July 2013, on a private car bearing registration mark MV 5022, near Lamppost No W2422, Ma Sim Pai Road, Tsuen Wan, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 55.03 grammes of a solid containing 40.10 grammes of cocaine. Facts 3.According to the amended Summary of Facts, at about 9:05 pm on 18 July 2013, the defendant was stopped by police officers when he was the driver of a private car bearing registration mark MV 5022 when it was stopped near the Lamppost No W2422, Ma Sim Pai Road, Tsuen Wan. The police officers revealed their police identities and requested the defendant to get off the car for enquiry but he attempted to drive the car away. One of the police officers then broke the window on the driver’s side with the use of his police baton and inserted his hand into the car, opened the door and removed the defendant from the car. 4.The police officers searched the vehicle in front of the defendant and they found a purple plastic bag between the driver seat and the front passenger seat. When the police officers opened the purple plastic bag, it was found that it contained altogether three large plastic bags, each containing a large number of plastic bags:-
5.The total weight of cocaine in this case concerned was 40.10 grammes. It had a street value of HK$53,048. 6.The defendant admitted possession of cocaine under caution and at the time of the arrest, he had with himself two mobile phones and cash of HK$104.8 and RMB$2. 7.The defendant was in possession of all the cocaine in this case for the purpose of trafficking. The Criminal Records and Background of the Defendant 8.Between 2007 and 2012, the defendant had altogether been brought in front of the court in five different appearances. His first conviction was a “common assault” charge back in 2007 for which he was sentenced by the magistrate to Probation. Obviously, he was in breach of the Probation Order after committing series of offences, including “assaulting occasioning actual bodily harm”, “claiming to be a member of triad society” and “common assault”. His Probation Order was later discharged and he was sentenced to the Rehabilitation Centre. He was discharged in October 2008. In May 2012, he was convicted once again for “possession of dangerous drugs” and he was fined HK$3,000. 9.The defendant had only an education level up to Form 3. After dropping out from the school, he had been engaged in various odd jobs. Before he was arrested, he was a delivery worker earning about $10,000 a month. He is still single. He is 23 years of age and he was living with his parents and a younger brother. Mitigation 10.In mitigation, Mr Tse, his solicitor informed the court that the defendant committed the present offence out of greed. He was promised a reward of HK$1,000 for trafficking the dangerous drug in this case. The defendant, according to Mr Tse, is now very remorseful and regrets for what he has done. He also feels sorry for his parents for the inconvenience and shame that he has brought to them. 11.A letter written by the defendant and also a letter written by the defendant’s mother were also submitted for my consideration. I am not going to repeat the content of those letters. Suffice it to say that the defendant said to me that he was very remorseful and he promised to me that he would not repeat the same mistake again in the future and asked me to be lenient in light of the fact that this is his first conviction of “trafficking in dangerous drugs” and he urges the court to be as lenient as possible. His mother is blaming herself for not rendering adequate supervision and not communicating properly with her son. In any event, understandably, the mother still hopes the court can be lenient so that they can be reunited again soon in the future. Sentencing Considerations 12.Trafficking in dangerous drug is of course a very serious offence. Anyone who was involved in this kind of criminal activity, once caught, will be expected to be dealt with severely by the court. It is true that this is the first conviction of this offence by the defendant but he had been given chances before. Looking at his records, as soon as he found himself in trouble with the law, the court already gave him a chance of probation back in 2007. Obviously, he did not treasure the opportunity. His Probation Order was soon discharged and he was sentenced to the Rehabilitation Centre. After that, the defendant still mingled with dubious peers and also has fallen to the habit of taking drugs and, in particular, cocaine. 13.The reason why he committed the present offence, according to the mitigation, was purely economical and of course largely as I can understand, due to his habit of using cocaine. The Court of Appeal has said in the past that economic reasons cannot be accepted as mitigation. I can fully understand the feelings of the defendant’s mother and the family, hoping that the court can pass a lenient sentence to the defendant but the Court of Appeal has said that in serious cases like trafficking, family circumstances virtually play no part in mitigation. 14.As far as the present offence is concerned, a message has to be sent that a sentence of deterrence has to be imposed not only to deter the defendant from repeating this mistake but also to deter the others like the defendant who might be contemplating of committing a serious crime like this to earn easy money. 15.The present case concerns cocaine. The Court of Appeal has said in the Attorney General v Rojas [1994] 1 HKC 342 that sentencing for trafficking in cocaine is aligned to the guidelines for trafficking in heroin as contained in the R v Lau Tak Ming & Others [1990] 2 HKLR 370. 16.In Lau Tak Ming (supra), it has been laid down that for a quantity of drugs between 10 to 50 grammes, the starting point would be 5 to 8 years’ imprisonment. The present quantity of cocaine was large and the street value is high. It comes to 40.10 grammes and the street value is said to be of about $53,000. According to the tariff, the starting point should be 87 months. The defendant pleaded guilty and for which he will be entitled to a full one-third discount. Order 17.After reduction, the defendant is sentenced to 58 months’ imprisonment.
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