HKSAR v WONG SO KUEN

DCCC 772/2022

[2023] HKDC 1187

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 772 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of trafficking in dangerous drugs that: -

(a)  A crystalline solid containing 0.09 grammes of ‘ice’; and

(b)  15.7 grammes of a solid containing 12.9 grammes of cocaine.

Summary of facts

2.  At about 0030 hours on 23 April 2022, the police conducted a roadblock operation outside No 8 Dundas Street, Mong Kok.

3.  At about 0040 hours, PW1 stopped a taxi and he saw the defendant was sitting alone on the right rear passenger seat. The defendant was trembling and clutching a recycle bag on her shoulder to herself.

4.  The taxi was directed to the search area.

5.  PW1 opened the left rear door of the taxi and saw that the defendant was stepping on a transparent plastic bag containing something wrapped in a piece of magazine paper with her left foot. The defendant attempted to conceal the plastic bag by moving her body and swinging the recycle bag. PW1 then requested the defendant to get off the taxi for enquiry.

6.  In a green purse inside the recycle bag, 3 transparent re-sealable plastic bags containing a total of 0.09 grammes of a crystalline solid containing ‘ice’ (“Exhibit 1”)  were found.

7.  The magazine paper wrapping was found to contain one transparent re-sealable plastic bag containing 100 smaller transparent re-sealable plastic bags containing a total of 15.7 grammes of a solid containing 12.9 grammes of cocaine (“Exhibit 2”).

8.  The taxi driver confirmed that he picked up the defendant outside No. 83 Argyle Street at about 0030 hours, he had checked that no belongings were left behind by previous passengers.

9.  PW2 conducted a body search on the defendant in Mong Kok Police Station and found the following items: -

(a)  HK$104.7;

(b)  3 mobile phones with 4 sim cards on the phones.

10.  In a video-recorded interview, the defendant stated that: -

(a)  She was unemployed and lived alone;

(b)  The 3 mobile phones seized were secondhand mobile phones she bought from her friend.

11.  The estimated street value of Exhibit 1 and Exhibit 2 seized were HK$51 and HK$25,999 respectively.

Criminal record

12.  The defendant has 4 court appearances between 2004 to 2018 with 4 counts of possession of dangerous drugs and one count of trafficking in dangerous drugs in 2018.

Background and Mitigation

13.  The defendant is now 54 years of age and she was born in Sichuan. She married in 1992, however, her husband left her to settle in the States. The defendant came to Hong Kong and met her ex-boyfriend. He also left her when she was pregnant. Her daughter is now 18 years old.

14.  The defendant started to take drugs since 2005. At the end of 2021, she started to take cocaine, but it was too expensive for her, she stopped taking cocaine in early 2022.

15.  The defendant said that about 50% of the drugs were for her own consumption. The 0.09 gramme of ice was the remaining portion from her previous purchase. The urine test showed amphetamine positive, but cocaine negative.

16.  Before the arrest, the defendant used to earn about $10,000 as a casual worker. At the time of her arrest, she has been unemployed for 1 to 2 weeks, but she has a saving of $15,000.

17.  In her mitigating letter, she told me that she comes from a respectful family, her father is a scientist and a university professor. Same as her 2 brothers. Her late mother was an artist. She feels ashamed to have committed the present offence and is remorseful.

Sentence

18.  In respect of trafficking in cocaine, the sentence guideline can be found: -

(a)  The Queen v Lau Tak Ming and others [1990] 2 HKLR 370;

(b)  AG v Pedro Nel Rojas [1994] 2 HKCLR 69 (heroin tariff is applicable to trafficking in cocaine);

(c)  In respect of 12.9 grammes of cocaine, it falls into the sentencing bracket of 5 to 8 years. It attracts a sentence of 5 years 3 months.

(d)  There is also an aggravating factor that the defendant committed the present offence while she was on a police bail for another drug related offence in January, 2022.

(e)  As such, I enhance the starting point by 3 months, the sentence arrives at 5 years 6 months. Given 1/3 discount, the sentence is reduced to 3 years 8 months.

19.  As to the small quantity of 0.09 grammes of ‘ice’, the defence said that it has no impact on the overall sentence. I agree.

Self-consumption

20.  The defence said that 50% of the drugs were for her own consumption.

21.  The prosecution does not accept such an assertion.

22.  When dealing with issue of self-consumption, the sentencing court has to bear in mind of the case of Wong Suet Hau and another CACC 366 & 487/2000 that the defence needs to satisfy the court that the “significant portion” of the drugs was for her self-consumption.

23.  The fact that the D was tested positive for amphetamine is neither here nor there.

24.   While in HKSAR v Cheung Wai Man [2019] 1 HKLRD 817 at para 49 said that the significant portion of the drugs were to be consumed by the defendant must be “based on credible and reliable information.” As there is “a real danger of abuse in this avenue of mitigation, ... mere assertions from the bar table, unless agreed or not in dispute, will generally not suffice.”

25.  That means the assertion must be confirmed / supported by factual material.

26.  The defence informed me that the defendant will not give evidence on the issue of self-consumption.

27.  Taking all the factors available before me, I refuse to accept that 50% or any part of the drugs were for her own consumption for the following reasons: -

(a)  Her average earnings per month was about $10,000. At the time of her arrest, she was unemployed.

(b)  She only had $104.7 with her at the time of arrest. That was just enough for her to take a taxi to her destination. That was NO. 931, Canton Road.

(c)  The street value of drugs was about $26,000. She simply has no financial resources to buy the drugs.

(d)  The drugs were packed into 100 smaller transparent re-sealable plastic bags which means they are ready for sell and for re-distribution.

(e)  The defendant took cocaine for about 2 months from the end of 2021. She stopped taking cocaine because she could not afford to buy them.

(f)  Urine test only showed amphetamine positive.

28.  Against this background, I rule that the defendant’s assertion for self-consumption has not made out, she is not entitled to further discount except the 1/3 discount for guilty plea.

29.  The defendant is order to serve a sentence of 3 years 8 months.