HKSAR v. WONG MAN KIN

DCCC 35/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 35 OF 2015

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REASONS FOR SENTENCE

1. Wong Man Kin you have pleaded guilty to trafficking in 43.40 grammes of a solid containing 21.87 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2. In summary around 6 p.m. on the 10 November last year the police intercepted you outside a public toilet near Oi Yung House, Yau Oi Estate in Tuen Mun.  The police found four transparent plastic bags inside in a paper bag carried by you.  Inside each of the four bags were between 45 and 50 more plastic bags containing the cocaine.  Under caution you said you had bought the drugs for your own consumption from someone called “Ah Sum” for $12,500.  The estimated street value of the cocaine was HK$41,056.

3. In passing sentence I have carefully considered everything said on your behalf by Ms Tsang together with the letters of mitigation which have been translated in court by Ms Tsang.  I take into account your young age and that you have a clear record.   

4. I am told that in June last year you were made redundant.  You then lived on your savings and money earned from part-time work.  Almost running out of money you decided to sell drugs to earn quick cash.

5. The courts have equated for sentencing purposes cocaine with heroin (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).  In R v Lau Tak Ming [1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is between 10 and 50 grammes is between 5 and 8 years imprisonment. 

6. You are only 20.  Section 109A of the Criminal Procedure Ordinance, Chapter 221 provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  Whilst this provision does not apply to trafficking in a dangerous drug, which is an excepted offence, a court must exercise great care before committing a young offender to prison. 

7. The Court of Appeal recently restated that only in very rare cases where there are exceptional circumstances will a training centre order be appropriate for trafficking in substantial quantities of drugs (see Secretary for Justice v Chau Tsz Tim CAAR 4/2014).  Noting that I have not been asked to call for any reports before passing sentence I find after very careful consideration this is not one of those very rare cases where a training centre order may be appropriate. Notwithstanding your young age and clear record I am satisfied I can proceed to sentence today without calling for any reports. 

8. On a purely mathematical approach a starting point of not less than 5 years and 11 months imprisonment would be appropriate for trafficking in 21.87 grammes of cocaine. Taking into account that you were just 20 at the time of the offence and that you have a clear record I am satisfied a starting point of 5 years and 6 months is appropriate. 

Own use

9. Ms Tsang tells the court that since 2013 you have a habit of taking cocaine.  By the time of your arrest you were taking cocaine on average 5 times per week and on each occasion would take 6-7 portions which is equivalent to six or seven of the smaller bags found on your arrest.  Save that you told the police on arrest that you bought the drugs for your own use there is no evidence placed before the court to show you were taking drugs at the time of your arrest. 

10. You were arrested on the street in possession of a substantial quantity of cocaine which was packed in way suitable for trafficking.  This leads me to have reservations that any of the drugs were for your own use.  However in putting this forward as mitigation you have not, as in many cases, sought to argue a large portion of the cocaine was for your own use.  Your case is that you would consume some of the cocaine and sell as much as you could.

11. I am prepared to accept this may be true and that a small quantity of the cocaine may therefore have been for your own use.  In deciding how much weight should be attached to the fact a small quantity of the cocaine may have been for your own use I have considered the decision in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34.

12. Taking into account the quantity of cocaine; the packaging; the drugs were found on the street; possession of drugs carries a sentence in any event; and the latent risk factor, I am satisfied the starting point should be reduced by 6 months to one of 5 years imprisonment. 

13. Giving you full credit for your plea of guilty you are convicted and sentenced to 3 years and 4 months imprisonment.