HKSAR v. WONG KWOK FUNG

DCCC 785/2020

[2021] HKDC 314

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 785 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of trafficking in 8.03 grammes of a solid containing 4.75 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.  In summary on 26 June 2020 the defendant was staying in Room 5 of the guest house situated at Flats E and F on the 2nd floor of Mong Kok Building, No. 546 Nathan Road.  At around 4:38 p.m. police officers intercepted the defendant as he was leaving the guest house.

3.  After the defendant opened the door of room 5 the police executed a search warrant.  Inside room 5 the police found a paper bag containing a plastic bag inside which was two transparent plastic bags.

4.  One of the transparent plastic bags contained twenty-two smaller transparent re-sealable plastic bags containing a total of 3.51 grammes of a solid containing 2.06 grammes of cocaine and the other transparent plastic bag contained thirty smaller transparent re-sealable plastic bags containing a total of 4.52 grammes of a solid containing 2.69 grammes of cocaine.   

5.  The police also found an electronic scale and numerous unused transparent re-sealable plastic bags.  Photographs of the dangerous drugs; electronic scale and transparent re-sealable plastic bags have been submitted to court.

6.  Under caution the defendant claimed most of the cocaine was for trafficking with a small amount for his self-consumption.  In a video recorded interview conducted the next day the defendant stated, inter alia, that he was addicted to cocaine and cannabis; he bought 12 grammes of cocaine for $30,000; he would consume part of the cocaine and sell most to others for profit; he could earn around $100 for each packet of 0.17 gramme of cocaine and the electronic scale and the unused transparent re-sealable plastic bags were used to pack the cocaine.

7.  Urine sample collected from the defendant on 28 June 2020, two days after his arrest, was positive for cannabis and amphetamine[2].

Mitigation

8.  In passing sentence, I have carefully considered the oral and written submissions of Mr Boyton, including that the defendant, aged 48, is single, lives with his brother and is a casual construction site worker[3]. Mr Boyton explains that due to the pandemic the defendant was unemployed at the time of his arrest and committed the offence out of greed[4].   

9.  I take into account that the defendant has serious heart disease as particularised in the medical reports submitted to court. 

Guidelines

10.  The courts have equated for sentencing purposes cocaine with heroin[5].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[6].  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment. 

11.  On a purely arithmetical approach a starting point of just over 3 years and 5 months’ imprisonment would be appropriate for trafficking in 4.75 grammes of cocaine.  I adopt a starting point of 3 years and 5 months’ imprisonment. 

12.  In R v Lau Tak Ming the Court of Appeal said that within the suggested bands a sentencing judge may properly take into account previous history of narcotic offences[7].  Taking into account that the defendant’s previous conviction for trafficking in a dangerous drug was in 2002 and since that time he only has two further convictions for possession of a dangerous drug in 2004 and 2018, I do not enhance the sentence by reason of previous offending. 

Own use

13.  The defendant claims that the transparent plastic bag containing twenty-two smaller transparent re-sealable plastic bags was for his own consumption[8].

14.  The defendant told the police that he paid $30,000 for 12 grammes of cocaine.  Mr Boyton explains that although the defendant was unemployed he lived on money borrowed from his brother and friends and that at the time of his arrest he was decorating the guest house for which he was offered free room and board[9].   

15.  The defendant asserts that three days prior to his arrest he had consumed cannabis and ice and therefore did not have to consume cocaine.  This, Mr Boyton says, is the defendant’s explanation for the results of the urine test showing positive for cannabis and amphetamine and negative for cocaine[10]. 

16.  Ms Lee opposes the claim that twenty-two smaller transparent re-sealable plastic bags was for the defendant’s own consumption and refers the court to the result of the urine test; the cocaine was divided into small packets and no paraphernalia consistent with consuming dangerous drugs were found in the room.  The prosecution case is that all the cocaine was for trafficking.    

17.  As indicated in court I do not accept the mere assertion that twenty-two smaller transparent re-sealable plastic bags were for the defendant’s own consumption.Mr Boyton having taken instructions from the defendant informs the court that the defendant does not wish to give evidence in support of his claim.   

18.  In my view the claim is inconsistent with what the defendant told the police that a small amount was for own-consumption and most was for trafficking and inconsistent with the urine test result which was negative for cocaine. 

19.  I reject the defendant’s claim twenty-two smaller transparent re-sealable plastic bags were for his own consumption.  Taking into account the defendant has a long history of drug abuse, he was abusing drugs at the time of his arrest and that he did tell the police a small amount was for his own consumption, I am prepared to accept that a small part of the cocaine may have been for the defendant’s own consumption. 

20.  In deciding how much weight should be attached to the fact a small part of the cocaine may have been for own consumption, I have considered the decision in HKSAR v Wong Suet Hau[11].

21.  In Wong Suet Hau the Court of Appeal said that in most cases the difference will be slight[12].  From the decided cases a discount of between 10-25% from the basic starting point has been held appropriate where a significant proportion of the drugs were for own consumption. 

22.  In HKSAR v Cheung Wai Man the Court of Appeal said that in determining whether there was a significant proportion the sentencing court must have credible and reliable information and material[13]. 

23.  I am not satisfied credible and reliable information and material has been placed before the court to show that a significant proportion of the cocaine was for the defendant’s own consumption.

24.  Taking into account all the circumstances of the arrest; the latent risk factor and that possession of drugs carries a sentence in any event, I am satisfied that the starting point should be reduced by 2 months to 3 years and 3 months’ imprisonment, which is equivalent to a discount of just under 5%. 

25.  Giving the defendant full credit for his plea of guilty reduces the sentence to 2 years and 2 months’ imprisonment.

Heart disease

26.  Whilst sympathetic to anyone suffering from serious heart disease, I am satisfied this provides no ground to further reduce the sentence, in particular considering the defendant continues to take dangerous drugs which cannot help his medical condition.

27.  Furthermore, I am satisfied that the defendant will receive all necessary medical treatment while serving sentence and that the prison authorities will closely monitor the defendant’s condition.  Should there be a change in the defendant’s condition he may always apply to the Executive for clemency.

28.  The defendant is convicted and sentenced to 2 years and 2 months’ imprisonment.