HKSAR v. Wong Yiu Kuen
|
HCCC 187/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 187 OF 2014 -----------------
--------------------------------- Transcript of the Audio Recording --------------------------------- COURT: The defendant, Wong Yiu-kuen, faced one count of trafficking in dangerous drugs,contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. You pleaded guilty to the charge and was duly convicted after you admitted to the Summary of Facts in support of the charge. Summary of Facts On 12 November 2013, officers of the Customs and Excise Department conducted an anti-narcotics operation in the Kwun Tong area. At around 1125 hours they spotted the defendant driving a private vehicle into the car park of Good Year Industrial Building, at number 119-121 How Ming Street. The defendant went up to the 13th floor. C&E officers lay in ambush at the rear staircase on the 13th floor, and the defendant came out of flat C06, that is the premises, at about 1150 hours. The defendant was intercepted and 10 plastic bags containing herbal cannabis of 100 grammes were found. Under arrest and under caution the defendant admitted the cannabis flowers belonged to him, and he would distribute them to others. The defendant put up a struggle and he was subdued and handcuffed. C&E officers entered the premises with the defendant and found the following: a plastic bag containing 110 grammes of ketamine; a plastic bag containing 1.86 grammes of methamphetamine hydrochloride, that is the “Ice”; 13 plastic bags containing 1950.87 grammes of cannabis in herbal form; and 13000 tablets containing 87.86 grammes of nimetazepam. And C&E officers also found one set of electronic scales; 207 empty plastic bags; two heat sealers and two vacuum sealers. Under arrest and under caution the defendant stated that all the drugs belonged to him, they were for distribution. He also admitted ownership to the packing equipment. The retail price of all the seized drugs was estimated to be HK$833,070.64. Background of the defendantand mitigation The defendant is a man, 38 years of age. He has a 12‑year‑old daughter by a previous marriage, and a son was born to him and his wife in December 2013, that is one month after the defendant committed the present offence. He is not a first offender, though most of his previous convictions relate to driving offences. He had no previous conviction of any drug-related offences. Mr Chong, counsel for the defendant in mitigation informed me that the defendant originally agreed to help someone known as “Choi Gor” to rent the premises for a legitimate purpose. However, about six months before the offence the defendant came to learn that Choi Gor used the premises to store dangerous drugs and the defendant agreed to deliver dangerous drugs for him - for this Choi Gor. Mr Chong submitted that the defendant was then under financial strain and the defendant foolishly agreed to embark on this illegal transaction. I was informed by Mr Chong that the defendant’s wife suffered from some sort of panic disorder some three years ago, and after the birth of the son she also suffered from postnatal depression. She is currently receiving outpatient treatment. The defendant’s mother had a stroke and is also currently receiving outpatient treatment. I should add that for both the mother and the wife I was given some medical documents in support. As for the dangerous drugs involved in this case, Mr Chong submitted that on the defendant’s instruction part of the “Ice” was for the defendant’s own consumption and the defendant also planned to share some of the “Ice” with friends free of charge. A memo from the CSD Department confirmed that a urine test performed on the defendant after his arrest confirmed the presence of amphetamine. Mr Chong urged me to accept this assertion of the defendant. Mr Chong referred me to various authorities, mainly on the appropriate starting points for the drugs involved in this case. He urged me to adopt an overall starting point of less than 8 years if it is accepted that some of the “Ice” is for the defendant’s own consumption. The defendant wrote to me expressing his remorse. His wife and his former employer also wrote on his behalf asking for leniency. Mr Chong asked me to be as lenient as possible to the defendant. Trafficking in dangerous drugs is a serious offence. A person convicted of this offence on indictment is liable to a fine of HK$5 million and life imprisonment. For the trafficking of more than one kind of drug, there are two sentencing approaches open to the sentencing judge. The first one is an individual approach where each component in a cocktail of drugs is looked at to establish the sentence relevant to each individual drug before an appropriate adjustment to the overall sentence was made. And the second one is a combined approach where a sentence for the most serious drug would be calculated before making an upward adjustment to take into account significant quantities of the other less serious drugs in terms of their potency: That is the case of Yip Wai Yin & Anor [2004] 3 HKC 367. In the circumstances of the present case as the drugs are disparate in quantity and potency, the individual approach is more appropriate, that is according to the authority of Ko Ka Hing [2009] 4 HKLRD 856. So I will of course bear in mind that no matter which approach I adopt it is a consideration of the overall starting point that is of importance. The Court of Appeal has set down guidelines for the trafficking of “Ice”, ketamine and cannabis. With reference to the quantity involved in this case, the guidelines are as follows:
In coming to my decision as to the appropriate starting point for each drug, I bear in mind all the circumstancesof the offence, the quantity involved and the role played by the defendant. And it should be borne in mind that the defendant did not merely act as a courier but as a packer and distributor in this drug trade, although there is no evidence to suggest that the defendant was involved in any syndicated drug activities or that he was the mastermind. For the 1.86 grammes of “Ice”, I am of the view that a starting point of 3 years would have been appropriate. I accept that part of the “Ice” is intended for the defendant’s own consumption. This starting point is adjusted to one of 2 years and 3 months, that is after giving the defendant a 25 per cent discount: this is according to the authorities of Wong Suet Hau & Anor [2002] 1 HKLRD 69 and also Chow Chun Sang[2012] 2 HKLRD 1121. The ketamine involved is 110 grammes. Adding the 87.86 grammes of nimetazepam, which is treated as ketamine for the purpose of sentence, the total narcotics involved is 197.86 grammes. So the appropriate starting point is one of 8 years. For the herbal cannabis, after making the downward adjustment, a starting point of 6 months is appropriate. So having stepped back and looking at these starting points, I am of the view that the proper overall starting point is one of 8½ years. Although the defendant is not a person with a clear record, this is the first time he is convicted with a drug-related offence, and I will not enhance the starting point because of his criminal record. The defendant pleaded guilty before me, and it is a timely one. I will give him the full one-third discount. It was properly considered by Mr Chong the financial hardship the defendant faced and the medical conditions of the defendant’s wife and mother are not special grounds for me to further reduce the sentence. So the actual sentence for the offence of trafficking in dangerous drugs, the defendant is sentenced to 5 years 8 months’ imprisonment. | ||||||||||||||||||||||
Cases cited in this judgment