HKSAR v. WONG LAI KUEN

DCCC 707/2018

[2019] HKDC 743

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 707 OF 2018

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REASONS FOR SENTENCE

1.  The defendant stood trial on a single count of trafficking in 8.30 grammes of a mixture containing 6.93 grammes of heroin hydrochloride and 0.27 gramme of a crystalline solid containing 0.25 gramme of methamphetamine hydrochloride (“ice”), contrary to section 4 of the Dangerous Drugs Ordinance[1] (charge 1).

2.  The defendant was found not guilty of trafficking in dangerous drugs and convicted on her own plea to possession of the dangerous drugs.  At the commencement of the trial the defendant also pleaded guilty to one charge of possession of 105 tablets and 3 tablet fragments containing zopiclone, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance[2] (charge 2) and one charge of possession of apparatuses fit and intended for the injection or inhalation of dangerous drugs, contrary to section 36 of the Dangerous Drugs Ordinance (charge 3).

3.  Full particulars of the offences are set out in my reasons for verdict handed down on 20 May 2019 and the summary of facts admitted by the defendant on 26 March 2019.

4.  In summary at about 1200 hours on 6 June 2018 the police executed a search warrant at Room 403, Lung On House, Lower Wong Tai Sin (II) Estate where the defendant resided with her mother. 

5.  The police found on a table inside the defendant’s bedroom a black box containing the heroin and the ice together with the zopiclone tablets; eighteen plastic wrappers and thirteen empty transparent re-sealable plastic bags; an electronic scale and a white box containing 110 tablets of midazolam[3].  

6.  The police also found in the top drawer of a cabinet in the defendant’s bedroom apparatuses for injecting heroin and inhaling ice and the tablet fragments of zopiclone. 

7.  In a video recorded interview, the defendant admitted, inter alia, that she had the habit of taking drugs for around 20 years; the apparatuses found in her bedroom were for smoking ice and injecting heroin; she took about 0.2 gramme of heroin twice a day and seldom took ice.

Mitigation

8.  In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Wu.

DATC report

9.  By virtue of section 54A of the Dangerous Drugs Ordinance no sentence of imprisonment may be imposed for the offences of possession of a dangerous drug or possession of apparatuses fit and intended for the injection or inhalation of dangerous drugs without first considering the suitability for cure and rehabilitation.

10.  The report details the defendant’s background and addiction history, including that the defendant was sentenced to a DATC four times in 1993, 1995, 2002 and 2010. 

11.  The Assessment Officer states that the defendant appeared to be co-operative and polite in attitude.  Having spent a year in custody the defendant claimed that she had made up her mind not to take drug for good and regretted her past misdeeds.  The defendant wished to look after her mother, who is now over 80. 

12.  The mother continues to support the defendant and believes the defendant has made up her mind to quit drugs. 

13.  The Medical Officer is of the opinion that the defendant is no longer a drug dependent and therefore considered unsuitable for admission to a Drug Addiction Treatment Centre. 

Charge 1 - possession of heroin and ice

14.  In HKSAR v Mok Cho Tik the Court of Appeal held that the starting point for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months[4].   

15.  Taking into account the defendant was in possession of two different drugs, albeit a very small quantity of ice, I am satisfied a starting point of 18 months’ imprisonment is appropriate.

Persistent offender

16.  The defendant has appeared in court on sixteen occasions since 1981 amassing a total of nineteen convictions, all relating to drugs and Part 1 poison, including one conviction for trafficking in 2007.  Taking into account the last conviction was in 2010, over 8 years ago, I do not enhance the starting point by reason of the defendant’s previous offending.

Latent risk

17.  Taking into account that the defendant has one previous conviction for trafficking; was a recipient of CSSA with unstable income and the presence of packaging suitable for selling drugs,I am satisfied there was a clear risk that the drugs could have fallen into other hands.  In the circumstances I enhance the starting point by 9 months to 2 years and 3 months’ imprisonment. 

18.  Giving the defendant full credit for her plea of guilty reduces the sentence to 1 year and 6 months’ imprisonment.

Charge 2 – possession of Part 1 poison

19.  Taking into account the 105 tablets of zopiclone were possessed together with the heroin and the ice I am satisfied a short custodial sentence is appropriate.  In the circumstances I take a starting point of 3 months’ imprisonment. 

20.  Giving the defendant full credit for her plea of guilty reduces the sentence to 2 months’ imprisonment.

Charge 3 - possession of apparatuses fit and intended for the injection or inhalation of dangerous drugs

21.  For possession of apparatuses fit and intended for the injection of heroin and the inhalation of ice I am satisfied a starting point of 3 months’ imprisonment is appropriate. 

22.  Giving the defendant full credit for her plea of guilty reduces the sentence to 2 months’ imprisonment.

Totality

23.  The three offences arising out of the same facts I am satisfied concurrent sentences are appropriate.  The defendant is convicted and sentenced as follows: 

Charge 1 - 1 year and 6 months’ imprisonment;

Charge 2 - 2 months’ imprisonment; and

Charge 3 - 2 months’ imprisonment.

24.  The total sentence to be served by the defendant is 1 year and 6 months’ imprisonment.