HKSAR v. Wong Chi Fai and Another

HCCC 71/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 71 OF 2014

-----------------

-----------------

---------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

---------------------------------

COURT: There are two defendants in this case. D1 pleaded guilty to one count of trafficking in dangerous drugs. D2 did not plead guilty to this count with which she was originally jointly charged with D1.

At the trial of D2, the indictment was amended to the effect that the count was split into two counts.

After trial D2 was found not guilty of these two counts, but was found guilty of possession of dangerous drugs for both counts.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular, the nature and quantity of the dangerous drug concerned, background of each defendant and mitigation put forward on their behalf.

The facts of the case may be summarised as follows.

At the material time the two defendants were living together in a house in Yuen Long. Shortly after midnight on 8 March 2013, D1 left the house holding a plastic bag of “Ice”. He drove a car to leave the estate but was blocked by police cars near the entrance. He still drove his car forward and backward repeatedly trying to make his way of escape. Eventually, he alighted from the car and tried to flee. After some struggling he was subdued.

The plastic bag of “Ice” was left in the car. It was 87.70 grammes of crystalline solid containing 83.87 grammes of “Ice”.

A police officer then entered the house where the two defendants lived. At the toilet, D2 was seen using a shower trying to dispose of 16 packets of “Ice” in the toilet bowl. She was stopped and the dangerous drugs was recovered. It was 370.42 grammes of a crystalline solid containing 338.71 grammes of “Ice”. D2 was arrested. When she was later interviewed, she did not make any admission in relation to the dangerous drug.

At the beginning of the trial, D1 pleaded guilty to having trafficked in all the dangerous drugs mentioned above, and eventually testified for the prosecution. He said D2 did help him to put the dangerous drug into small plastic bags. He, however, said D2 had nothing to with his buying and selling of the dangerous drug, it was his own decision. He also said D2 did not know his buyers, the money found inside the house was not hers and he had not asked D2 to guard the dangerous drug.

D2 testified. She denied having helped in the packaging of the dangerous drug. She said she tried to dispose of the dangerous drug with a view to help D1 to avoid further liability. Her handling of the dangerous drug was not for the purpose of trafficking.

D1 is 39 years of age. He has received education up to Form 5 level. He had worked as a cook and autocar technician.

He has a criminal convictions record. In 1996 for two counts of trafficking in dangerous drugs he was sentenced to a total sentence of 6 years’ imprisonment. In 2003 he was convicted of some traffic offences, including driving when disqualified and driving without third party coverage. In 2006 he was convicted of two charges of theft and one charge of dangerous driving for which he was sentenced to a total sentence of 4 months. In 2010 he was convicted of one charge of possession of dangerous drugs and one charge of obstructing a police officer for which he was again sentenced to a total sentence of 4 months. In 2011 he was convicted of gambling and was fined. In August 2013 he was convicted of dangerous driving and driving an unlicensed vehicle. In December 2013 he was convicted of dangerous driving, resisting police officers and driving an unlicensed vehicle. For these charges he was sentenced to a total sentence of 3 months.

Learned counsel for D1, Mr Davies, urged me to take into account the guilty plea of D1 and that he had testified on behalf of the prosecution.

The dangerous drug D1 trafficked in was “Ice”. Bearing in mind the date of the offence and the observation of Stock VP in HKSAR v Tam Yi Chun CACC 524/2011, the tariff set out in AG v Ching Kwok Hung [1991] 2 HKLR 125 is applicable and I do not see reasons to depart from it.

In that case the Court of Appeal held that if the narcotic content of the “Ice” which the defendant trafficked in was between 300 and 600 grammes the sentence will range from 14 to 18 years’ imprisonment.

The total narcotic content of the “Ice” which D1 trafficked in was 422.58 grammes. Bearing in mind his previous conviction, I am of the view that the starting point should be enhanced by 6 months. I adopt an ultimate starting point of 16 years for D1.

D1 pleaded guilty and he is for this reason entitled to a one-third discount. Besides, he has testified for the prosecution. The testimony contained evidence which implicated D2, but at the same time exculpated her to a considerable extent.

I am not in a position to tell from the jury’s verdicts whether they found him a truthful witness or not. In any case, having regard to the short witness statement he had provided, it appears to me that he did come up to proof as far as the implicating part is concerned.

As regards the exculpatory parts, D1 was silent in his witness statement. It was possible that the prosecution was caught by surprise and D1 might be accused of not having provided full and frank disclosure, but the area was not covered during taking of the witness statement.

In my judgment, the testimony of D1 cannot be said to be contradictory to what he said in his statement.

In the circumstances, having regard to the remarks which the Court of Final Appeal made in Z v HKSAR FACC 9/2006, and a Court of Appeal decision in HKSAR v Chung Chi Kuen CACC 337/3013, I will give a total discount of about 50 % to D1.

D2 is 20 years old. She had been living with D1 since she was 16 years old. She also has criminal convictions record. In 2008 for three charges of assault occasioning actual bodily harm she was put on probation. She breached her probation order and in February 2009 was sent to Drug Addiction Treatment Centre. In June 2013 for an offence of possession of dangerous drugs, she was again put on probation.

Learned counsel for D2, Mr Iu, urged me to take into account the special circumstances in which D2 committed the present offence, in particular, the pathetic relationship which he described D2 had with D1. She was financially dependent on him and was so emotionally attached to him that she could not walk away from the circumstances.

When she testified she did not dispute she was trying to dispose of the “Ice” with a view to protect D1, realising that it would amount to pervert the course of justice. She had also in previous occasions shouldered alone criminal liability of possession of dangerous drugs for which at least D1 should also be responsible.

Mr Iu told the court that D2 is now full of remorse. She decided to separate from D1 and will turn over a new leaf. A letter written by D2 was produced in which she expressed her remorse. Mr Iu also submitted that consideration of latent risk is not applicable in the present case.

The DATC report revealed that D2 had been abusing “Ice” and ketamine since she started secondary education. After her discharge from her first detention in DATC in 2009, she managed to keep out of drugs for a brief period, but relapsed into the habit in about 3 months’ time. As a result, she was recalled. A few months after her discharge she relapsed into drugs again. In early 2013 for possession of dangerous drugs she was put on probation.

Since her arrest for the present offence, D2 has been in custody and unsurprisingly it is reported that D2 is no longer drug dependent and DATC is not recommended.

As in committing the present offences D2 breached the probation order, a PO report was obtained. The probation officer said D2 was a rebellious and weak‑willed young woman who did not grab the chance of probation supervision. The officer also said parental care and guidance to D2 was inadequate. As a result, D2 led a loose-life pattern exhibited with behavioural problems, mixed with dubious peers and turned wayward.

Further probation is not recommended.

In all the circumstances, an imprisonment term is the only appropriate sentence to impose on D2. The maximum sentence for the offence of possession of dangerous drugs is 7 years’ imprisonment.

The basis of the prosecution’s allegation against D2 was that she all along was in possession of the dangerous drug on the day in question. The prosecution did not ask the jury to find D2 in possession of the two batches of dangerous drugs for the respective act of helping him packaging and disposing of the dangerous drugs in the toilet bowl. They asked the jury to take these two pieces of evidence into account in deciding whether D2 was all along in possession of the dangerous drug.

It follows that the basis of the convictions must be that the jury was sure that D2 was all along in possession of the two batches of “Ice”.

It was the evidence of D2 herself that she was not addicted to drugs at the time of the offences.She also said as she was under probation there were frequent visits by the probation officer and urine tests were conducted on her. It was therefore not a case where D2 possessed any of the dangerous drugs for her own consumption.

D2 was found in possession of a large quantity of “Ice” and it could not have been for her own consumption. As Stock JA, as he then was, observed in HKSAR v Ng Hung Chi CACC 186/2000, it will be artificial to adopt a normal approach to take a starting point on a basis of a quantity of drugs intended for consumption of the possessor.

I have to sentence D2 on a factual basis that she was in possession of the dangerous drug all along on the day of the offence, but as far as she was concerned it was not for the purpose of trafficking nor was she a party to an agreement to traffic in the dangerous drug.

In the light of the proximity of the two offences, I will follow the approach in HKSAR v Touray Edrisa CACC 124/2010 and have regard to the overall quantity of drugs in sentencing.

It was the evidence of D1 that he was in possession of the dangerous drugs for the purpose of trafficking. It was the evidence of D2 herself that she was aware that D1 had been in the trade of trafficking and there is no evidence to show that she had any belief about the existence of the present dangerous drugs other than the usual purpose.

In the circumstances of the case, I have to bear in mind the very substantial degree of latent risk, and an enhancement of the starting point by about 2 years is required.

I, however, am persuaded that the circumstances in which D2 committed the offence was special, in particular, bearing in mind the relationship between the two defendants and that they were living together. If not for this reason, in my judgment a starting point of 5½ years is appropriate. In all the circumstances, I adopt a starting point of 5 years for the two counts D2 now stands convicted.

I did not find D2 entitled to any discount. She had not pleaded guilty to have in possession of the dangerous drugs concerned. Despite during the trial she did not contest she had tried to dispose of the “Ice” in the toilet bowl, such act was not the basis of the prosecution’s allegation of possession.

What the jury found must be that D2 was all along in possession of the dangerous drug on the day of the offence.

Defendants, please stand up.

For the reasons I have mentioned, D1 I sentence you to 8 years’ imprisonment for the count of offence to which you have pleaded guilty.

D2, I sentence you to 5 years’ imprisonment for each count to run concurrently with each other, and the probation order imposed in TM995/2013 be discharged.