HKSAR v. WONG PAK HEI

DCCC1114/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1114 OF 2011

----------------------

----------------------

--------------------------

Reasons for Sentence

--------------------------

1.  The defendant has pleaded guilty today to three charges of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2.  The 1st charge was committed on 27 May this year where the defendant was arrested on Cheung Ning Street, To Kwa Wan, with a total of 4.59 grammes of cocaine and 4.33 grammes of “Ice”.  For Charge 2 and 3, they were both committed on 21 July.  Charge 2 involves a total of 0.93 gramme of cocaine.  Charge 3 involves a total of 3.12 grammes of “Ice”, 0.55 gramme of cocaine and 25.38 grammes of cannabis in a herbal form. 

3.  The facts of the prosecution’s case are as follows.  In the 1st charge, on 27 May the defendant was stopped and interrogated on the street.  Upon a search, the cocaine was found in a total of 16 plastic bags.  If they were equally distributed amongst the bags, each bag would contain about 0.288 gramme of cocaine.  The “Ice” was found in one resealable plastic bag.  The drugs were found in a pocket of the bag carried by the defendant.

4.  Upon arrest and caution, he did admit possession of the drugs but for self-consumption.  When he was arrested, he was in possession of some $3,800 odd cash and 3 mobile phones. 

5.  The estimated street value of the drugs on this date was $8,761. 

6.  The defendant was allowed bail.  Some 2 months later he was arrested, this time by Customs & Excise officers, about to board a taxi in Jordan.  He was searched and in a bag containing 5 resealable plastic bags it was uncovered 0.93 gramme of cocaine.  Again if I assume that the drugs were equally distributed amongst the 5 bags, each bag would weigh 0.258 gramme.

7.  The defendant was then taken back to his premises, his home which was searched. 

8.  Charge 3 involves the drugs found at his home. Each type of drug was found in a separate bag.  Paraphernalia was also discovered traditionally used for packing drugs, namely a sieve, electric(electronic?) scale and empty resealable plastic bags.

9.  He did under caution admit possession but said that these drugs were for his own consumption.  However, in a subsequent record of interview he admitted that the drugs found on his person were to be delivered to somebody for a reward of $2,000.  He admitted that he had been doing this type of trafficking which, I assume, means as a courier for about half a year. 

10.  I do note and take into account that there was paraphernalia found at his home for trafficking drugs and the fact that he had on the first occasion 3 mobile phones on him and on the second occasion 2 mobile phones very common amongst drug couriers.  

11.  Defendant’s best mitigation today is his plea of guilty.  He does have previous convictions that involve drugs, namely two convictions for possessing dangerous drugs in 2001 and one previous conviction for trafficking dangerous drugs in 2003 for which he received a 2-year-and-2-month sentence.

12.  I have been told that the defendant is 31 years old, is married but lives with his own family in Tseung Kwan O.  He has employment as a part-time transportation worker.

13.  I have heard all mitigation that can be put forward to assist the court in sentence and will take it all into account. There is a submission that part of the drugs involved in these charges were for self-consumption and not all of the drugs was for trafficking.  I have been told that the defendant takes drugs once to twice a week consuming normally cocaine but sometimes “Ice”.  If he takes cocaine, he would normally consume about 2 grammes per day which would cost about $1,000.  And if it was “Ice”, he would consume about 1.5 grammes a day which would also cost approximately $1,000.  Prosecution does not accept that this is the reality and says that those figures and amounts submitted were far too high for normal consumption. 

14.  I have been told that defendant funded his drug habit by his part-time job as a transportation worker as well as the financial benefits of trafficking dangerous drugs.  Where there is such mitigation, I have referred myself to the authority of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69.  And after considering that authority, I have rejected this submission for the following reasons.

15.  In relation to Charge 1, the dangerous drugs were found during a stop-and-search on the street, these drugs were not stored at home.  He told the police that all the drugs on his person were for self-consumption which I reject.  He had 3 mobile phones and a certain amount of cash on his person which is normal for a drug mule or drug courier.  I have no physical evidence that the defendant is a drug addict.  Moreover, he has previous conviction for trafficking dangerous drugs.  Moreover, as pointed out by Miss Chan for the prosecution, there was no drug-taking paraphernalia found at his home; in fact, the only paraphernalia would have been used for packing drugs.

16.  So for the purposes of sentencing today, I do not accept that a significant proportion of the dangerous drugs in these 3 charges was for the defendant’s own consumption.  I would not take into account a proportion of the drugs was for self-consumption.

17.  Charges 1 and 3 involve a cocktail of dangerous drugs, that means there is more than one type of dangerous drugs.  In Charge 1, the defendant trafficked almost equal amounts of “Ice” and cocaine.  “Ice” is the more dangerous and serious drug of the two.  Drugs of this nature do attract a tariff where sentencing is concerned, and for cocaine, this drug attracts the same tariff as heroin.  Therefore, I refer myself to the authority of Lau Tak Ming [1990] 2 HKLR 370 and the appropriate tariff in this authority concerns where there is up to 10 grammes of heroin, a 2-to-5-year term of imprisonment would be appropriate.

18.  The drug “Ice” attracts guidelines that have been set out in the authority of R v Ching Kwok Hung [1991] 2 HKLR 125. And for drugs of the quantity in Charge 1, I refer myself to the appropriate tariff which is where there is up to 12 grammes of “Ice”, a 3-to-7-year term of imprisonment is appropriate.  Where in Charge 1, if I was looking at just the quantity of cocaine, a starting point of about 3½ years would be appropriate. And if I was just looking at the quantity of “Ice” in Charge 1, a starting point of 4½ years would mathematically be appropriate. 

19.  To decide the sentencing approach for charges with different drugs, I have referred myself to the authority of HKSAR v Wong Kin Kau, CACC269/2009, as well as Archbold, the latest edition 2012, page 552, paragraph 5-504e(3).  I quote from paragraph 5 of the authority:

“In HKSAR v Ko Ka Hing [2009] 4 HKLRD 856, this court (differently constituted) identified two different sentencing approaches when a defendant had trafficked in more than one type of dangerous drugs:

(a) The first approach is the ‘individual approach’ where an appropriate starting point is determined for each type of dangerous drug, and they are then combined into an overall starting point prior to any discount;

(b) The second approach is the ‘combined approach’ where a starting point is determined for the most serious type of dangerous drug, and it is then adjusted upwards in light of the quantity of the less serious drug in order to arrive at the ultimate starting point; but no such adjustment is required if the less serious drug is present in insignificant quantity.

Cheung JA went on to say:

‘No matter which approach is taken, the paramount consideration at the end of the day is the totality of the overall starting point.’

I agree. I add that I believe, often it is the combined approach which is more likely to lead to the correct overall sentence.”

20.  I will take the combined approach for Charges 1 and 3 here.  For Charge 1, I would take a starting point for the quantity of “Ice” of 4½ years and adjust it upwards to take into account the quantity of cocaine to arrive at a starting point of, for Charge 1, 5 years and 6 months. For Charges 2 and 3, they were committed on the same day.  Charge 3 arises as a result of the home search.  It would make sense to consider a global approach of the total amount of dangerous drugs for both charges together.  There is a total of 1.48 grammes of cocaine which would, if I calculate according to the guidelines I have already referred to, would attract a sentence of about a 2-year starting point.  There is a total, for both charges, of 3.12 grammes of “Ice”.  If I was looking at the “Ice” alone, that would attract a starting point of about 4 years.

21.  And for the 25.38 grammes of cannabis, herbal cannabis, I have looked at the authority of HKSAR v Chor Lui [2001] 3 HKLRD 95 and the tariff for under 2,000 grammes of herbal cannabis would attract a sentence of up to 4 months.  This, in my view, is an insignificant quantity and sentence. 

22.  Taking the combined approach, the majority of the dangerous drugs in Charges 2 and 3 is “Ice”, the most dangerous drug.  I would take the starting point for “Ice” of 4 years and adjust it upwards to take into account the quantity of cocaine and arrive at a starting point of 4 years and 8 months.

23.  Defendant, please stand up.  I will take into account your plea and the remorse shown as well as all the background information I have received today and all the mitigation I have heard and will give you a discount of 50 per cent.  Where in Charge 1, I have taken a starting point of 5 years and 6 months, after a discount of 50 per cent, the sentence for Charge 1 is 2 years and 9 months.  For Charges 2 and 3, as I have said, I would take a global approach and a starting point of 4 years and 8 months will also attract a 50 per cent discount which would mean that for Charges 2 and 3, you are sentenced to 2 years and 4 months.  Charges 2 and 3 will be served concurrently. 

24.  I have mentioned that Charges 2 and 3 were committed 2 months after you were granted bail for Charge 1.  This is an aggravating factor.  I do not accept the defendant’s reason for continuing his involvement after bail was granted in the drug trade, but I will take into account the totality principle and the mitigation on the whole and make the sentence of 2 and 3 partly consecutive and partly concurrent to Charge 1.  9 months of Charges 2 and 3 will be served consecutively to Charge 1 and the balance concurrently.  That would mean for Charges 1, 2 and 3, a total sentence of 3 years and 6 months.