HKSAR v. WONG MING CHUN

HCCC 443/2023

[2024] HKCFI 2212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 443 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty in the Magistrates’ Court to one count of trafficking in a dangerous drug (Charge 1)  and another count of possession of a dangerous drug (Charge 2). He admitted on 20^th December, 2021, outside Room 6929 (“Room 6929”), Nina Hotel Tsuen Wan West, No. 8 Yeung Uk Road, Tsuen Wan, New Territories, he unlawfully trafficked in a dangerous drug, namely, 27.4 grammes of a crystalline solid containing 27.3 grammes of methamphetamine hydrochloride, ‘Ice’ and inside Room 6929, he had in his possession 0.03 grammes of a solid containing cocaine and traces of a solid cocaine. He was committed for sentence on 18 December 2023 and today confirms his plea as well as his agreement to the Summary of Facts.

The Facts

2.  Acting on information, the police mounted an anti-narcotic operation at about 4 pm on 20 December 2021 and put Room 6929 under observation and stayed in the neighbouring room, Room 6930.  At about 9:25pm, the defendant was seen leaving Room 6929 with a female.  On seeing this, DPC 13150 (“PW1”)  and DPC 15828 (“PW2”)  revealed their police identities and immediately went up to intercept both the defendant and the female respectively.  The officers then took them into Room 6929 for investigation.  Upon search, PW1 found from the right front pocket of the defendant’s pants a transparent re-sealable plastic bag containing suspected dangerous drug.  He was also found carrying a black bag which contained cash of HK$5,746 and 3 mobile phones.  The suspected dangerous drug was later examined and confirmed to be 27.4 grammes of a crystalline solid containing 27.3 grammes of methamphetamine hydrochloride.  The defendant rented Room 6929 on 20 December 2021.

3.  The Police later conducted a search inside Room 6929 in which one glass bottle containing 0.03 grammes of a solid containing cocaine and two pieces of tin foils containing traces of a solid containing cocaine were found in an open area on the surface of the TV cabinet.

4.  The defendant was arrested for unlawfully trafficked in a dangerous drug.

5.  In the committal proceedings, the defendant agreed with the summary of facts and admitted that he unlawfully trafficked the Ice in Charge 1 and in addition, he had in his possession the cocaine as contained in the glass bottle and the two pieces of tinfoils seized by the police in Count 2.

Mitigation

6.  The defendant is now 48 years old, divorced with two daughters and a son, all in their twenties.  He was remarried with a Chinese lady who is now living in the mainland.  Before his arrest, he lived with his mother, his eldest daughter and his younger son in a public housing unit in Tsuen Wan.  He was born in Hong Kong and received education up to Form 2.  According to the antecedent statement to which the defendant admitted, he has been a member of the Wo Shing Wo triad society for about 30 years and is active in Jordan, Kowloon area.  He had worked as formed work worker at construction sites for over 20 years, earning around $40,000 a month on average.  At the time of the arrest, the defendant was unemployed waiting for the start of a new project.  He is not a man with a clear record and it consists of 11 previous convictions with only 3 relating to dangerous drugs including two trafficking records as early as in 1991 and subsequently in 2019 in which he was sentenced to Training Centre and an imprisonment for 3 years and 4 months.  At the time of arrest, he was a drug addict, abusing Ice and cocaine as supported by the result of the urine test conducted by the Correctional Service Department when the defendant was remanded into custody.

7.  Mr Chang, counsel for the defendant, has said all he can say on behalf of the defendant.  He emphasized the role of the defendant as keeping some extra quantity of Ice for another male who had originally sold him the Ice and an electronic scale for $12,000 but left an extra quantity of Ice in the hotel room for the defendant to keep it for him for a short period of time.  In truth, not much can be said in mitigation for an offence of this nature.  The defendant’s best mitigation is his plea of guilty, for which he will be entitled to a full one-third discount.

Sentencing

8.  For Charge 1, it is well established that trafficking in a dangerous drug is a very serious offence which carries a maximum sentence of life imprisonment and a fine of HK$ 5 million.  I have considered the approach to sentencing those that traffic in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.  It was very recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho[2024] HKCA 150.

9.  In the approach to sentencing Charge 1, six steps have been identified which the court should take.  They are assessing the gravity of the offence and the applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors and, lastly, passing a sentence which is fair, just and balanced in all of the circumstances of the offence and the defendant.

10.  The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug seized.  There are two types of dangerous drugs.

11.  The tariff for the drug Ice is set out in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  The Court of Appeal has decided in that case that where between 10 and 70 grammes of Ice is trafficked, the starting point should be between 7 to 11 years’ imprisonment.  According to mathematical calculation, the appropriate sentence for 27.3 grammes of Ice will be 8.2 years. 

12.  The second step of the six steps is to assess the defendant’s role and culpability based on the evidence.  All of the Ice in Charge 1 were found from the right front pocket of the defendant’s pant in a transparent re-sealable bag as he went out from Room 6929.  Through his counsel, he admitted buying the Ice and also a scale from another male drug trafficker, for HK$12,000 but for some unknown reasons, he was given more than he requested for and he was told to keep the extra quantity and when he was intercepted by the police outside Room 6929, he said he was on his way to return the extra drugs.  I was not told of the exact amount of the extra quantity of Ice that the defendant received from the male drug trafficker  but I find it hard to accept his explanation as to why the male drug trafficker would have left him with more Ice than he had purchased in the first place and also why he did not insisted that the male drug trafficker should come to Room 6929 to collect the extra quantity of Ice but instead he ran the risk of being caught by carrying the whole quantity of Ice out in a bag without carrying also the scale and any re-sealable packet.  In my analysis, the defendant’s explanation is simply untenable but no matter what was the case, I am going to attribute to him the role of a storekeeper and a courier for the purposes of sentencing.

13.  Therefore, taking into account the third step of where within the guidelines the defendant should lie, his sentence will be determined by the relevant tariffs and the quantity of dangerous drugs involved.

14.  Accordingly, I find the appropriate starting point to be 8 years and 2 months’ imprisonment.

15.  The fourth and fifth steps require me to consider whether there are any aggravating factors or any exceptional mitigating factors.  I do not find any aggravating or mitigating factors. Although this is the third conviction in relation to drug trafficking, the first conviction is his first conviction which was some 33 years ago when he was only 15 years old so I would not take this conviction into account and treat the present conviction as only his second conviction.

16.  The defendant will benefit from a one-third discount from that starting point.  Once that discount is applied, that starting point is reduced to 65 months or 5 years and 5 months’ imprisonment.

17.  The last step to take is to stand back and look at the overall sentence in order to ensure that it is a fair, just and balanced sentence in all the circumstances of not only the offence but also the defendant.  I have no doubt that it is such a sentence.

18.  Therefore, for Charge 1, the defendant is sentenced to 5 years and 5 months’ imprisonment. 

19.  For Charge 2, since the charge is a lesser offence of simple possession, and the quantity is only 0.03 gramme of cocaine and it is obvious that what was left in the Ice bottle and tinfoils were just tiny left-over quantity for self-consumption.  I therefore only impose a sentence of 3 months’ imprisonment and reduce it to 2 months’ imprisonment on account of the plea of the defendant.

20.  Finally, because of the principle of totality, I order that 1 month of the term imposed on Charge 2 to serve consecutively with the term of Charge 1, making a total of 5 years and 6 months’ imprisonment for both charges.