HKSAR v. WONG SO KUEN

DCCC 451 & 642/2017

[2018] HKDC 43

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.451 & 642 OF 2017

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

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

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

Reasons for Sentence

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

1.  The defendant pleaded guilty to one charge of possession of dangerous drugs and one charge of trafficking in a dangerous drug.

Summary of facts

Charge 1: possession of dangerous drugs

2.  At around 3:30pm on 23^rd February 2017, the defendant was intercepted by patrolling Police officers as she was acting suspiciously.

3.  Upon search, 3 transparent resealable plastic bags were found on her. They contained 18 red pellets, 9 white pellets and 16 blue tablets respectively. These pellets and tablets were later confirmed to contain a total of 6g of a mixture containing 4.59g of heroin hydrochloride, and 0.22g of midazolam.

4.  The defendant was arrested and she admitted under caution that the heroin and midazolam were for her self-consumption.

Charge 2: trafficking in dangerous drugs

5.  About 3 months later, on 4^th May 2017, at around 7:36pm, the defendant was seen standing outside the female toilet at the ground floor of block 23 of Shek Kip Mei Estate, looking around nervously.

6.  Police officers intercepted her and upon search of the sling bag that the defendant was carrying, a total of 27 packets were found. Inside the packets were a total of 8.82g of a mixture containing 5.51g of heroin hydrochloride, with a total street value of around $6,500.

7.  The defendant was arrested for trafficking in dangerous drugs. She had 3 mobile phones containing a total of 5 SIM cards and $1,929 cash on her.

8.  The defendant admitted to the final paragraph of the summary of facts which states that she had, at all material times, possessed the 27 packets of drugs for the purpose of unlawful trafficking.

Previous convictions

9.  The defendant has 3 previous convictions, of which 2 were for possession of dangerous drugs.

Mitigation

10.  The defendant is going to turn 49 in a few days. She was born in Sichuan, and attended a tertiary education institution there. She quit after year 2.

11.  The defendant was married but got divorced when her husband deserted her in around 1993. They have not met again since.

12.  In 2003, the defendant gave birth to her daughter with her then boyfriend, who also left. The daughter is 14 years old now and resides at Small Group Homes operated by Hong Kong Children and Youth Services.

13.  I am told that the defendant intends to go back to mainland China to live with her father of 76 years old, taking her daughter with her.

14.  In relation to the heroin in charge 2, I am told that the defendant had intended to buy some heroin from her drug dealer when the dealer asked her to deliver the drugs to another location for somebody to collect. The defendant was not promised any remuneration.

Sentences

Charge 1

15.  Although this is the defendant’s third conviction for possession of dangerous drugs, her last convictions were some 12 years ago. I will not take her previous convictions as an aggravating factor for this offence.

16.  For simple possession of drugs for self-consumption, the sentence usually ranges from 12 to 18 months’ imprisonment, depending on the quantity involved, as well as other circumstances pertinent to sentencing (see HKSAR v Mok Cho Tik, CACC 165/2000).

17.  In the present case, I find that given the nature and quantity of the drugs involved, a proper starting point is that of 14 month’s imprisonment.

Charge 2

18.  In relation to the trafficking of heroin hydrochloride, the guideline sentencing tariff is as set out in the case of R v Lau Tak Ming, CACC 230/1989. For narcotic contents of below 10g, the range of sentence is between 2 to 5 years’ imprisonment.

19.   An arithmetical approach would lead to a starting point of 43 months’ imprisonment, and this is the starting point that I adopt.

Aggravating factor in relation to charge 2

20.  The defendant was granted bail for the offence she was arrested for in charge 1. She committed the trafficking offence whilst on bail. For this aggravating factor, I will enhance the defendant’s sentence on charge 2 by 2 months’, taking the sentence to 45 months’ imprisonment.

Discount upon guilty plea

21.  It is not disputed by the prosecution that the defendant had entered timely guilty pleas to both charges. The defendant is entitled to the full one-third discount.

22.  The defendant is, therefore, sentenced to 9.3 and 30 months’ imprisonment for charge 1 and 2 respectively.

Totality

23.  Charge 2 took place about 3 months after the defendant’s commission of charge 1. The only connection between the two charges is that they were both committed by the defendant. They are not of a single transaction.

24.  Taking a step back, I order that 6 months of the sentence in charge 1 to be served consecutively to the sentence in charge 2, the balance to be served concurrently.

25.  The total final sentence for the two charges is 36 months’ imprisonment.