HKSAR v. WONG KA MING

DCCC 621/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.621 OF 2012

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. Particulars of the charge are that the defendant on 5^th May 2012 unlawfully trafficked in 68.82g of a solid which contained 10.21g of cocaine in Hong Kong.

Facts

2.  The defendant was spotted by Police on anti-drug patrol at 9:49pm on the charge date when he acted furtively near a rubbish bin under the Mody Road footbridge, as if looking for something.

3.  2 minutes later, the defendant picked up a paper bag from near the rubbish bin and put it into the right front pocket of his trousers. The defendant then boarded a taxi. Police followed the taxi and intercepted it nearby.

4.  Upon search, the paper bag was found on the defendant and inside was some solid wrapped in tissue paper. This was later found to be 68.82g of solid containing 10.21g of cocaine. The defendant admitted that he was helping someone to deliver the drugs.

5.  The defendant was then arrested and under caution he said that he committed the offence because his girlfriend was pregnant.

6.  The defendant had HK$221.20, RMB 2 and 3 mobile phones with him when he was arrested.

7.  In a later video recorded interview, the defendant claimed that he was unemployed and that a Man Chai asked him to deliver the drugs to Ah Lung in Hung Hom Railway Station. The defendant knew what he was doing was illegal and that he was delivering illegal substance.

8.  The estimated street value of the dangerous drugs was HK$28,240.

Previous convictions

9.  The defendant has 9 previous convictions with none similar to the present offence. He however committed the present offence whilst under a suspended sentence that was imposed on 11^th March 2011 for 3 vehicle related offences for which he was sentenced to a total of 4 months’ imprisonment suspended for 2 years. The defendant therefore was 14 months into the suspension when he committed the present offence.

Mitigation

10.  The defendant is 21 years old, single. He was born in mainland China and was brought to Hong Kong to join his parents when he was 3. The defendant’s father is a retired fireman who is now 89 years old and is bedridden and hospitalized. He is no longer able to recognize those around him and the defendant believes that he hasn’t got much time left.

11.  The defendant’s mother is a farmer. The defendant’s father married her when he was 77. The defendant is now working as kitchen worker.

12.  The defendant’s father has 2 marriages and the defendant was born to his second wife.

13.  When the defendant first arrived in Hong Kong, he was not well received by the children of his father’s present marriage. The defendant and his mother had to be arranged to stay in a small cubicle in Tseun Wan.

14.  The defendant worked very hard despite a difficult childhood and passed examinations with flying colours.

15.  Somehow, after the defendant started his secondary schooling, his father began using corporal punishment on the defendant over trivial matters. Welfare Department was informed and the defendant was arranged to stay at a children protection hostel. There the defendant met other children and juveniles with bad background. They proved to be bad influence on him and the defendant started to go astray.

16.  The defendant worked as factory worker, waiter and clean. The reason he committed the present offence was because in February this year, the company he was working for closed down. The defendant tried hard to find work. In April 2012, the defendant went to a pub for a job interview where he accidentally ran into the acquaintance known as Man Chai. Man Chai was the person who eventually talked the defendant into committing the present offence.

17.  The defendant’s girlfriend was 3 months pregnant at that time and the defendant needed money. The parents of his girlfriend had always objected to their being together. The defendant thought that if he did not have any money for the baby, he would not stand any chance with her parents. That was why the defendant stupidly committed the offence. In the circumstances, the defendant did not receive any money as a result of his arrest.

Sentencing Tariffs

18.  The applicable guidelines for trafficking in cocaine, as confirmed in the case of Attorney General v Pedro Nel Rojas [1994] 1 HKC 342, are found in the case of R v Lau Tak Ming [1990] 2 HKLR 370. Sentencing for trafficking in cocaine for quantities between 10g and 50g is that of 5 to 8 years’ imprisonment.

Sentence

19.  The maximum sentence for trafficking under s.4 of the Ordinance is that of life imprisonment and a fine of $5 million. This is an excepted offence and as such although the defendant is 21 years old, imprisonment need not only be imposed as a last resort because s.109A of the Criminal Procedure Ordinance, Cap.221 does not apply.

20.  Furthermore, I find that the defendant’s age does not fall into the category of ‘extreme youth’ and as such is not a mitigating factor for the very serious offence of trafficking in dangerous drugs.

21.  Having said that, I fully sympathize with the defendant’s plight. It is a shame that he was not able to continue his good work at school because of the failure of his father to act as a responsible father. I also understand the pressure that the defendant is under when he found out that his girlfriend was pregnant and he wanted to provide for his child when he or she arrives in this world.

22.  Taking into consideration all the circumstances, I will adopt a starting point of 60 months’ imprisonment, reducing it by 45% to the resultant sentence of 33 months’ imprisonment.

Activation of suspended sentence: s.109C of the CPO, Cap.221

“(1) If an offender is convicted of an offence punishable with imprisonment committed during the operational period of a suspended sentence or if, during such period, he breaks a condition imposed under section 109B(3)(a) and either he is so convicted by or before a court having power under section 109D to deal with him in respect of the suspended sentence or he subsequently appears or is brought before such a court, then, unless the sentence has already taken effect, that court shall consider his case and deal with him by one of the following methods-

(a) the court may order that the suspended sentence shall take effect with the original term unaltered;

(b) it may order that the sentence shall take effect with the substitution of a greater or lesser term for the original term;

(c) it may by order vary the original order under section 109B(1) by substituting for the period specified therein a period expiring not later than 3 years from the date of the variation; or

(d) it may make no order with respect to the suspended sentence,

and a court shall make an order under paragraph (a) of this subsection unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence, and where it is of that opinion the court shall state its reasons.”

23.  The defendant did not respect the chance the court had given him on the previous occasion when the suspended sentence was imposed and chose to commit the present offence while he was under suspension. The defendant had however been able to stay out of trouble for slightly more than half of that suspension period.

24.  Taking that into consideration, I will first of all order the full activation of the 4 months’ imprisonment pursuant to s.109C(1)(a), but I will order that 2 months of that activated sentence to be served concurrently to the present sentence. The defendant will therefore serve an extra 2 months after the completion of the sentence in the present trafficking case, making the total of 35 months’ imprisonment.