HKSAR v. WONG MAN PIU

DCCC 994/2018

[2019] HKDC 605

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 994 OF 2018

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REASONS FOR SENTENCE

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1.  Defendant is charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

2.  The facts as admitted by him this afternoon are as follows.

3.  On 19 April 2017, a number of officers were engaged in an anti-narcotics operation in the vicinity of Hing Wah Car Park at Wan Tsui Road, Chai Wan.

4.  At around 10:18 pm, the defendant was seen by officer DPC8964 to have mounted the driver’s seat of a private motor vehicle with the registration number UP5672. 

5.  The defendant was intercepted by another officer of the team, DPC8259, about five minutes later and, on a body search, he was found to have in his possession a phone, a little over $500 in cash, and a key for the car. 

6.  Armed with a search warrant, the officers then went on to search the car and they found in the course of that search a bag hidden underneath the steering wheel near the foot pedals of the vehicle. 

7.  This bag was later sent to the government chemist for examination and it was confirmed that the bag has inside 43 smaller plastic bags containing a total of 8.39 grammes of a solid containing 7.81 grammes of cocaine.

8.  At around 10:45 the same evening, the defendant was arrested by DPC8964 for the offence of trafficking in a dangerous drug.  Under caution, the defendant stated that the cocaine belonged to him and was for his own consumption.

9.  In a video interview which took place in the evening of 20 April 2017, the defendant repeated that the cocaine was for his own consumption, that this was bought by him from a friend called “Ah Lung” on 31 March 2017 at $5,300. The defendant said that was the only time he purchased dangerous drugs from “Ah Lung” and he hid the dangerous drugs under the driving wheel of the vehicle. He said the drugs would have lasted him for about a month and he also told the police in the same interview that he was working as a transportation worker, earning about 9 to 10 thousand dollars per month. 

10.  According to the police estimate, the street value for the cocaine found on the car was about $7,700.

11.  The defendant, of course, pleaded guilty to the charge of trafficking this afternoon and, as confirmed by Mr Lau, solicitor appearing for him, in spite of the claim of self-consumption he was making to the police both at the scene and at the video interview, it is now accepted by the defendant that the drugs were actually for the purpose of trafficking. 

12.  It is, however, maintained that a portion of it was to be retained for his own consumption.  This portion, Mr Lau said, was for about a third of the drugs.  I shall come to deal with that shortly.

The defendant’s background

13.  The defendant is now 30 years old.  He is locally born and bred.  He left school after finishing Form 2 and had since been working as a transportation worker.  He is married for 9 to 10 years and is living with his wife, two young daughters aged 4 and 8 respectively, and his parents at a unit in a government housing estate in Chai Wan.

14.  Now, he has one previous conviction for claiming to be a member of a triad society.  That was entered in 2008 when he was only about 19 years old. 

15.  According to Mr Lau, the defendant was a responsible father.  He brought home about $7,000 per month for the family’s support.  The defendant’s wife is basically a housewife, although she had also worked part-time as a saleslady, mainly on the weekends.

16.  Mr Lau has this afternoon handed up a letter from the defendant’s father, a letter from his wife, and one from his employer.  All of them spoke positively about the defendant.  The father was telling the court also about his own failing health.  What they have not mentioned at all in their letters, however, is the addiction the defendant had to drugs, which, according to what I was told, the defendant had been suffering from for about 10 years.

17.  In mitigation, Mr Lau has urged the court to consider giving a discount for the following three matters:  one, the defendant’s guilty plea, which was indicated at the earliest opportunity; two, the question of self-consumption, which I have mentioned earlier; and, three, what he has called “a substantial and undue delay”.

18.  Now, dealing, if I may, with the question of self-consumption first.  As I have mentioned earlier, the court is not prepared to accept that up to a third of the dangerous drugs found in this case was for the defendant’s own consumption, when all there is before the court is only a bare assertion on his part. 

19.  However, as the prosecution is prepared to accept that the defendant had an addiction problem, the court is prepared to give a small discount in exercising the court’s discretion.

20.  Now, more, however, can be said about the question of delay.  Upon enquiry, I have been told by Mr Ng for the prosecution that, after the defendant’s arrest, the police had harboured a grave suspicion as to the claim he was making about having the drugs for his own consumption and, because of that, they had used more time than usual to look into the records of the defendant’s mobile phone, the question of fingerprints and maybe the possibility of DNA evidence on the bags of drugs, and related matters.

21.  I was told by Mr Ng also, that, as the investigation was still going on, the police had , for some reason, decided to release the defendant unconditionally in October 2017.  The matter was however still in the hands of the police and, no doubt after obtaining legal advice, a decision was made to have the defendant re-arrested in October 2018.  He was charged after his second arrest and then brought to court shortly thereafter.

22.  Now, as I have mentioned, the fact that the defendant was first released about seven to eight months after his arrest and then re-arrested about a year afterwards must have increased the pressure and agony on the defendant’s part and, as the explanation given to the court for the lapse of time is not wholly convincing, the court feels obliged to consider giving the defendant a small discount for the delay in bringing the case to court.

Sentencing Consideration

23.  As the defendant must have been told by his solicitor, for offences of the kind he has committed, there are clear sentencing guidelines.  Applying the tariffs established in Lau Tak Ming, a sentence in the range of 2 to 5 years is to be adopted as the starting point of trafficking in heroin and/or cocaine of up to 10 grammes.

24.  In the present case, the defendant was trafficking in 7.81 grammes of cocaine.  In my view, the proper starting point is one of 4 years and 3 months’ imprisonment, or 51 months.

25.  The defendant has pleaded guilty to the charge at the earliest opportunity and is therefore entitled to a full one-third discount for that, and, with that discount, the sentence will come down from 51 months to 34 months.

26.  Based on the view I have expressed on the possibility of him having a small part of the drugs for his own consumption, the court is prepared to err on the generous side and give him a one month discount.

27.  For the question of delay, defendant will get an extra month of discount.

28.  Accordingly, the Defendant is sentenced to a term of 32 months’ imprisonment.