HKSAR v. KWOK MAN WAI

HCCC 411/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 411 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant pleaded guilty before a Magistrate for a charge of trafficking in a dangerous drug. Today he pleaded guilty before me and stands convicted of the charge.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on his behalf.

The facts of the case are simple. During a house search at the residence of the defendant, a black bag was found. Inside the bag were 11 resealable plastic bags, each of which contained dangerous drug. The total quantity of the dangerous drug was 81.75 grammes of a mixture containing 49.78 grammes of heroin hydrochloride. In a bed drawer, 550 straw packets were found. The defendant was arrested. He admitted that the dangerous drug was his and he did it for somebody. In a subsequent interview he said he was promised a reward of $13,000 per month for storing and delivering of a drug which he had been told was cocaine. He received drug from a Pakistani man and was to deliver it. He had collected drugs twice and had received one payment of $13,000.

The defendant is 38 years old. He had worked as a property agency clerk. He was living with his wife and two daughters.

The defendant started to commit offences when he was young. His first conviction dated back to 1990 when he was 14 years old. For an offence of theft and an offence of criminal damage, he was sentenced to reformatory school. In 1992, for an offence of common assault and an offence of criminal intimidation, he was sentenced to detention centre. In 1994, for an offence of going equipped for stealing he was sentenced to training centre. In 1995, for an offence of assaulting a police officer, an offence of theft, an offence of attempted theft and an offence of common assault he was sentenced to training centre again. In 2000, for an offence of assaulting a police officer, he was sentenced to 120 hours of community service order. In 2001, for an offence of theft and an offence of assaulting a police officer, he was sentenced to a total sentence of 4 months’ imprisonment. In 2008, for the offence of trafficking in dangerous drug he was sentenced to 40 days’ imprisonment.

In mitigation, learned counsel for the defence, Mr Boyton, explained why the defendant committed the present offence. I was told that the defendant’s mother passed away last year and to cover the funeral expense, the defendant took out a debt. Under financial pressure, the defendant committed the present offence.

Mr Boyton also informed the court that after the said event, the defendant’s wife became pregnant unexpectedly. Further, it was found out that there is a lump in her womb and she is to undergo a surgery soon for this matter. His wife was a housewife before and now works in a beauty salon.

Mr Boyton urged me to take into account that the defendant had tried his best to keep out of trouble since 2001, after his marriage. In 2008, he was convicted for an offence of trafficking in dangerous drug which involved sharing with friends of cannabis. Apart from that, the defendant did not commit any other offence.

Mr Boyton also produced a letter written by the defendant in which he expressed his remorse. And a letter is written by the defendant’s wife and the daughter and they plead leniency on behalf of the defendant.

Despite the defendant was told that the dangerous drug he was to handle was cocaine, in all the circumstances I am of the view that the tariff for sentence in relation to trafficking in heroin is appropriate in the present case.

The Court of Appeal suggested in a case of R v Lau Tak Ming [1992] HKLR 370 that a sentence of 5 to 8 years’ imprisonment should be considered for trafficking in heroin if the narcotic content is between 10 and 50 grammes.

In all the circumstances, I do not find there are good grounds to depart from the tariff. I have borne in mind that it is the second trafficking offence committed by the defendant. However, in the light of what Mr Boyton told me and that only a sentence of 40 days’ imprisonment was imposed on the last occasion, my judgment is that it was only a minor offence and I therefore do not think an enhancement is required by reason of this previous record.

In all the circumstances, I consider a starting point of 7½ years appropriate. The defendant pleaded guilty at the earliest opportunity and is for this reason entitled to a one-third discount.

In my judgment, taking into account the whole circumstances, including what counsel said on the defendant’s behalf, this is the extent of discount the defendant is entitled to.

Defendant, please stand up. For these reasons, I sentence you to an imprisonment term of 5 years.