HKSAR v. WONG SHUK KING

DCCC 181/2023

[2023] HKDC 1839

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 181 OF 2023

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REASONS FOR SENTENCE

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1.  The Defendant (D)  pleaded guilty to a charge of trafficking in a dangerous drug, namely 15.29 grammes of a mixture containing 10.82 grammes of heroin.

Summary of facts

2.  At around 10:30 am on 9 November 2022, police officers intercepted the D when she was acting furtively outside Ground Floor, Mei Shan House, Block 42, Shek Kip Mei Estate.

3.  Upon search, 3 plastic bags containing a total of 70 packets of 15.29 grammes of a mixture containing 10.82 grammes of heroin were found hidden underneath the waistband of D’s jeans. Each of the packets was wrapped by a colored plastic sheet.

4.  D was arrested for the offence “trafficking in a dangerous drug”. Under caution, D admitted that someone who had asked her to deliver the same to Tung Chau Street Park in return for HK$500.

5.  At the time of arrest, D was in possession of cash of HK$13,521.2, RMB 50 and Indonesia Rupiahs 5,000 and a mobile phone with 2 SIM cards.

6.  In a subsequent video recorded interview, the D admitted under caution, among other things, that the Dangerous Drug was given to her by an old man in a park near Pak Tin, who had instructed her to deliver the same to Tung Chau Street Park where someone would find her and give her HK$500 as reward.

7.  The estimated street value of the dangerous drug was HK$10,095.

Criminal record

8.  The D has 8 court appearances for 9 convictions.

(a)  Possession of dangerous drugs in 1996, 1997, 1999, 2002 and 2008.

(b)  Assaulting a police officer in 2008.

(c)  Trafficking in dangerous drugs in 2017. She was released in May 2019.

Mitigation

9.  The D is now 53 years old. Married, but has been separated for some time. She used to work as a part time cleaner earning about $5,000 per month.

10.  At the time of arrest, she has been unemployed for 2 years and relied for public assistance of $3,200 for 7 months. She committed the present offences because she wanted to earn quick money.

11.  She played a role as a courier. Her reward was:-

(a)  $500 and

(b)  30 packets of the heroin out of the 70 packets.

12.  She was a drug addict and her urine test after the arrested was heroin positive. Her criminal record showed drug related offences.

13.  The HK$13,521.2 was also her savings.

Sentence

14.  The sentencing guideline for trafficking in heroin can be found in R v Lau Tak Ming [1990] 2 HKLR 370 that the narcotic content of 10.82 grammes of heroin falls into the sentencing bracket of 5 to 8 years.

15.  I take the starting point of 5 years and reduced the sentence to 3 years 4 months.

Self-consumption

16.  The D also claimed 30 packets of heroin was for her own consumption. The Defence has firmed instruction that the D will not give evidence on this point of mitigation.

17.  The Prosecution refused to accept this claim on the ground that:-

(a)  She never said the 30 packets were part of her reward after the arrest.

(b)  The value of the 30 packets was about $2,900. It was rather unusual to pay her partly in cash and partly in drugs.

(c)  She was unemployed at the material time.

18.  As said in the case of HKSAR v Cheung Wai Man CACC 258/2017 that:

“We would stress that it is fundamental that a claim of self-consumption needs to be established to the sentencing court’s satisfaction. There is a real danger of abuse in this avenue of mitigation, hence a sentencing court must have a proper factual and evidential basis in accepting the contention that a “significant proportion” of the drugs were for the defendant’s own consumption. Mere assertions by counsel from the bar table, unless agreed or not in dispute or contention, will generally not suffice. The prosecution also has an important role to play in assisting the court in resolving such a claim. If the prosecution has information and material that addresses the claim one way or the other, they should ensure that the court is appropriately informed of it. It is therefore important for a defendant in making a claim of self-consumption to put before the court credible and reliable information and material in an acceptable form. See HKSAR v Chong Chee Meng [2008] 6 HKC 407, paragraphs 19 to 50.”

19.  Also in the case of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, the court also said that, given the dangers of the abuse of this avenue of mitigation, the judge should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the contention, the court also list out a number of factors for consideration whether a case of self-consumption has made out.

20.  I refused to accept the assertion that 30 packets of the drugs were for her own consumption for the following reason:-

(a)  Although her urine test was heroin positive, it was not the determination factor to consider a claim of self-consumption;

(b)  The total quantity of the heroin was 15.29 grammes of a mixture containing 10.82 grammes of heroin. The street value was about $10,000;

(c)  I have the opportunity to see the packaging of the drugs from the photos, they were packed properly in the same size in each lot and they were ready for selling or distribution;

(d)  All the drugs were all hiding underneath the waist band of the D’s jeans. The 30 packets were not separated from the rest of the drugs;

(e)  For the claim of the 30 packets of drugs for her own use amount to $2,900, together with $500 each, the total reward for delivery of the $10,000 drugs was about $3,400. I agree with the Prosecution that it was very unusual and her reward was exceedingly high;

(f)  There were no paraphernalia associated with the drugs or any item used for consumption;

(g)  When the D was arrested, her explanation was to deliver the drugs to Tung Chau Street Park for a reward of HK$500. She said it 2 times under caution. She never said that 30 packets of the drugs were for her own consumption;

(h)  She was unemployed and she has a huge sum of money on her. That was about 4 months of her public assistance from the government. The money must be associated with the drugs. She clearly has no financial ability to buy the drug.

21.  It is not difficult to conclude that none of the packets was for her own use. Therefore, the claim for self-consumption was not made out.

22.  She is not entitled to any further discount except the full 1/3.

23.  As such, she is ordered to serve a sentence of 3 years 4 months.