HKSAR v. WONG CHAK MING AND ANOTHER

DCCC 1/2023

[2023] HKDC 1458

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1 OF 2023

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REASONS FOR SENTENCE

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Introduction

1.  Both D1 and D2 have pleaded guilty to the 1^st charge of trafficking in a dangerous drug while D1 has also pleaded guilty to the 2^nd charge of failing to display a valid vehicle licence.  They have been duly convicted upon their admission of the prosecution case.

Case background

2.  In the small hours on the 3 October 2022, police officers were conducting a snap check in Kwai Chung Road, Tsing Yi.  A private car, which was being driven by D1 with D2 sitting on the front passenger seat, was stopped by the officers.  The vehicle licence of the private car had expired on that day.

3.  When the police officers were approaching the driver’s seat, D1 opened the door and tried to escape.  D1 was then subdued.  A search was conducted in the private car where a total of 23 transparent resealable plastic bags containing a total of 5.1 grammes of cocaine were found.  The police also seized from the lap of D2 a bag containing cash amounting to about HK$18,000.

4.  D1 and D2 were arrested.  Under caution, D1 claimed that it was his first time delivering goods and asked for a chance.  Under caution, D2 claimed that she was responsible for collecting money and would receive HK$600 a day for her work.

5.  That is why D1 and D2 have been jointly charged with one count of trafficking in a dangerous drug and D1 has been further charged with one count of failing to display valid licence.

D1’s personal background

6.  D1 is aged 31.  He lives with his parents and a younger brother.  He received secondary Form 3 education and obtained a diploma from the Vocational Training Centre.  He used to work as waiter, delivery worker and construction site worker.  At the time of the offence, he was unemployed.

7.  D1 has a previous criminal conviction in 2016 for a count of possession of dangerous drug.  He was given a suspended sentence.  Furthermore, he has a few traffic convictions relating to speeding.  In particular, he was convicted of two counts of driving in excess of speed limit by more than 45 km/h on 3 March 2023 and was disqualified from driving for 1 year and 3 months for one offence and another 9 months for the other offence.  In addition, he was issued a fixed penalty ticket for failing to display valid licence in 2021 and was fined $640.  This is similar to the 2^nd charge in this case.

D2’s background

8.  D2 is a 30-year-old housewife.  She lives with her mother, a son and a daughter of tender age.  She was educated to secondary Form 4 and obtained a diploma from the Vocational Training Centre.

9.  D2 has a clear criminal record.

Mitigation

10.  The learned counsel for D1 and D2 have cited the tariff cases in relation to trafficking in cocaine: see AG v Pedro Nel Rojas [1994] 2 HKCLR 69 and R v Lau Tak Ming [1990] 2 HKLR 370.  In particular, both of them urged the court to take 3 and a half years’ imprisonment as a starting point since the 5.1 grammes of cocaine involved in this case stood roughly in the middle of the range up to 10 grammes, which attracts 2 to 5 years’ imprisonment.

11.  The learned counsel for D2 emphasized D2’s guilty plea and her remorse. It has been submitted that D2 was suffering from financial problem and that was the cause for her crime.  Mitigation letters have been submitted.

12.  D1’s mitigation is more complicated.  Apart from the mitigation letters and the remorse demonstrated by the guilty pleas, the learned counsel for D1 advanced on his behalf that 6 packets (of the weight of 0.72 gramme of cocaine), ie those listed in sub-paragraph (ii)  of paragraph 3 of the Amended Summary of Facts, out of the total 23 were intended for D1’s own consumption. The learned counsel has urged the court to give him proper deduction in the sentence.  A memorandum signed by a Chief Officer of the Stanley Prison and dated 8 Februrary 2023 confirms that the cocaine was tested positive in D1’s urine specimen collected on 6 October 2022, ie 3 days after his arrest.

Issue on self-consumption

13.  A defendant who relies on self-consumption of part of the dangerous drugs found in a case of trafficking as mitigation has to satisfy the court with credible and reliable information and material.  Mere assertion will not do: see HKSAR v Cheung Wai Man [2019] 1 HKLRD 817.

14.  However, the learned counsel for the prosecution, having sought proper instructions from the police, accept such assertion as being true.  In these circumstances, the court would have no choice but to accept that assertion.  I would also agree with the learned counsel for D2 that D2 should also get the benefit of such a concession from the prosecution.  It is because D2 should not be punished for trafficking those 6 packets of cocaine when they were not possessed for the purpose of unlawful trafficking but for D1’s own consumption.

Discussion on sentence

15.  Since the cocaine was contained in 23 separate packets and D2 admitted that she was collecting money with a large sum of money seized from her, the only reasonable inference is that D1 and D2 were on a drug distribution and selling spree.  Their role is actual or direct trafficking, ie the 2^nd category described by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.  This is the second lowest rank in the hierarchy of culpability.

16.  In view of the tariff cases cited above, I agree with the learned counsel for D1 and D2 that the quantity of cocaine involved should normally attract a term of 3 and a half years’ imprisonment as the starting point. Although they are not couriers or storekeepers but actual or direct traffickers, I am not going to enhance the sentence.  This is only their first conviction in trafficking.  In particular, D2 has a clear record.

17.  However, this is not the end of the matter.  It has been conceded by the prosecution that 6 packets of the cocaine seized were intended for D1’s own consumption.  Therefore, the weight of the cocaine possessed by the two defendants for the purpose of unlawful trafficking should be reduced to roughly 4.38 grammes.  Such a weight should not attract 3 and a half years’ imprisonment.  On the other hand, the court should not simply disregard the 6 packets of cocaine as if D1 and D2 are not culpable for possessing them.

18.  In my view, a term of 3 years and 3 months’ imprisonment would be the appropriate starting point to reflect that 6 packets out of the 23 packets of cocaine in total were for D1’s own consumption.  Such a starting point applies to both defendants.  Although D1 has a previous record of possession of dangerous drug, I am not going to give him a more severe sentence than that of D2 in order to avoid disparity in sentencing.  As a matter of fact, D1 was already punished for that earlier conviction.

19.  There is no aggravating factor in this case.  Although D1 tried to escape from the police, he was subdued without causing any injury to the police officers.

20.  Both D1 and D2 admitted their guilt under caution.  Mitigation letters tell this court how remorseful they are now.  However, these are not reasons for any further reduction other than the normal one-third discount they get from their guilty pleas.

21.  Having carefully considered the facts of the case, the relevant tariff cases, the backgrounds of the two defendants and all the mitigation advanced on behalf of them, I adopt as a starting point 3 years and 3 months’ imprisonment for the 1^st charge.

22.  Owing to their guilty pleas, I reduce the sentence for both defendants in the 1^st charge to 2 years and 2 months’ imprisonment.

23.  I am satisfied that the sentence of 2 years and 2 months’ imprisonment would be fair, just and balanced in all the circumstances of the offence and the two defendants.

24.  Regarding the 2^nd charge, D1 has a similar booking record in 2021.  I would take a fine at the sum of $1,200 as the starting point and reduce it by one-third to $800 for his guilty plea.

Sentence

25.  For the above reasons, I impose a sentence of 2 years and 2 months’ imprisonment on D1 for the 1^st charge.

26.  For the above reasons, I impose a fine at the sum of $800 on D1 for the 2^nd charge. (I would allow him to pay the fine by 30 June 2024.)

27.  For the above reasons, I impose a sentence of 2 years and 2 months’ imprisonment on D2 for the 1^st charge.