HKSAR v. WU KWOK KEE

DCCC 1114/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1114 OF 2013

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved are heroin and ICE.

Summary of Facts

2.  About 12:45 a.m. on 26 September 2013, PC 34724 (PW1) stopped the defendant for enquiry outside the Ground Floor entrance of No.55 Yu Chau Street, Shamshuipo ("the Building").

3.  Upon search, PW1 found the following items in the defendant's left front trouser pocket :-

(i) 2 resealable plastic bags containing a total of 49 packets which contained a total of 7.85 grammes of a mixture containing 5.20 grammes of heroin hydrochloride (collectively "E1");

(ii) 1 resealable plastic bag which contained 0.70 gramme of a solid containing 0.36 gramme of heroin hydrochloride and 0.17 gramme of methamphetamine ("E2"); and

(iii) 1 resealable plastic bag which contained 7.17 grammes of a crystalline solid containing 6.98 grammes of methamphetamine hydrochloride ("E3").

4.  At the scene, the defendant admitted under caution that he would sell the heroin and ICE to others to earn a living.  The admission was post-recorded in PW1's notebook and signed by the defendant about 2 hours later on the same day.

5.  The defendant's residence situated at 5^th Floor of the Building was searched.  Nothing suspicious was found.  In his subsequent video-recorded interview, the defendant claimed that E1 to E3 were for his own consumption and that he did not bring them for sale to others.  He refused to answer any questions.

Mitigation & Sentence

6.  The defendant is now 58 and has 5 conviction records, which include 4 "simple possession" offences and 1 "trafficking" offence.

7.  Defence counsel Mr. WOON informed me that the defendant divorced his 2^nd wife in 2002.  He has a son (aged 30) from his 1^st marriage; his son and 1^st wife now reside in the United States.  The defendant resides alone.  Mr. WOON also informed me that at the time of his arrest, the defendant was working as a substitute baker earning $4,000 to $5,000 per month; he would only rely on social welfare when not in employment.

8.  In mitigation, Mr. WOON submitted that the defendant would not sell drugs to strangers; he only sells to friends who are already addicts.  The defendant did not earn any real cash either; he only earned the price difference to feed his own addiction.  Mr. WOON further submitted that the defendant has been a drug addict for over 30 years (despite his first drug-related conviction only took place in 1998).  He intended to reserve a small portion of the heroin and ICE (1 gramme each) for self-consumption.

9.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.

10.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in heroin (see  The Queen v LAU Tak-ming & others [1990] 2 HKLR 370) and ICE (see A-G v CHING Kwok-hung [1991] 2 HKLR 125).  For up to 10 grammes of heroin, the sentence ranges from 2 to 5 years' imprisonment.  For up to 10 grammes of ICE, the sentence ranges from 3 to 7 years' imprisonment.

11.  In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v YIP Wai-yin & another CACC 80/2003 and HKSAR v CHENG Yat-ming CACC 455/2006.

12.  For the purpose of sentencing, I would disregard the drug contents in E2.  In other words, in the present case, the defendant trafficked in a cocktail of drugs consisting of 5.20 grammes of heroin and 6.98 grammes of ICE.  For 5.20 grammes of heroin, the appropriate starting point is 3.5 years.  For 6.98 grammes of ICE, the appropriate starting point is 5.5 years.  I am of the view that the "combined approach" would arrive at a realistic and fair sentence. 

13.  The potency and quantity of the ICE involved is clearly of a larger degree.  The quantity of ICE shall form the basis of the starting point.[1] Hence, I adopt a starting point of 5.5 years' imprisonment and adjust it upward by 15 months for the heroin, arriving at 81 months.

14.  Regarding the defendant's claim for self-consumption, I have reminded myself of the relevant sentencing principles.[2] There is cogent evidence showing that he is a drug user, the possibility of self-consumption thus exists.  As to the quantity, I accept that 1 gramme each of the heroin and ICE appears to be reasonable.  I am prepared to reduce the sentence to 75 months to reflect the overall discount for self-consumption.

15.  Finally, a one-third discount is given for the guilty plea, reducing the sentence further to 50 months.   I hereby sentence the defendant to 50 months' imprisonment.