HKSAR v. KONG KWOK WAH

DCCC199/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 199 OF 2011

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to an offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

2.  You admit that on 21 January 2011, at the staircase of the 2nd Floor, Nos 6-8 Kam Fong Street, Mongkok, Kowloon, you trafficked in 9.96 grammes of a mixture containing 8.06 grammes of heroin hydrochloride.

3.  On the day in question, police officers were carrying out anti-narcotics operations in plain-clothes in the Mongkok area.  At around 12.55 pm, the officers saw yourself and another man called “Men Wing-wai (‘Men’)” walk along Soy Street and Kam Fong Street.

4.  They saw the two of you stop outside the Kam Fong Street building, that is Nos 6-8, and ‘Men’ patted you on the shoulder and signalled you to enter the building.  You both then went into the building.  Finding your conduct and ‘Men’s’ conduct suspicious, the officers entered the building and intercepted you both at the staircase on the 2nd floor for enquiries. 

5.  At that time, you and ‘Men’ were walking down the staircase in a hurried manner.  The officers revealed their police identity and questioned both of you.  You admitted that you lived in Yaumatei and that ‘Men’ was your friend.

6.  You and ‘Men’ were searched and inside your front right trousers pocket was found one transparent resealable plastic bag containing 60 packets of the drugs.

7.  You were arrested and under caution you admitted possession of the white powder and claimed that it had nothing to do with ‘Men’.  In January 2011, the total retail for those drugs amounted to approximately HK$8,276.

8.  You admitted that at the material time you possessed the heroin for the purposes of unlawful trafficking.  

9.  Mr Alfred Tang, your solicitor, has made full mitigation on your behalf today. 

10.  In summary he has mitigated on the basis that part of these drugs were for your own consumption and he asked me to take therefore a lower starting point as an amount for trafficking in dangerous drugs.  He has submitted to me that 2 grammes of the drugs were for your own consumption and therefore asked me to sentence you on the basis that you were trafficking in 6.08 grammes of heroin. 

11.  In considering whether drugs are for a defendant’s own consumption he has rightly referred me to the case of HKSAR v. Wong Suet Hau Ice and Chan Sau Pang, CACC366/2000 and CACC487/2000, as to when a court should take into account an admitted trafficker’s mitigation that some of the drugs were for his own consumption.  In that case the relevant paragraphs are from 27 onwards and more particularly paragraph 34.

12.  In determining whether to accept the contention as to whether these drugs were partly for your own consumption some factors are to be considered.  Mr Tang has submitted that the factors in your mitigation in advancing the fact that you were in possession for your own consumption were, firstly, that you were coming down the staircase as opposed to going up the staircase to deliver drugs; upon arrest and under caution you frankly admitted that they were for your own consumption; there was no paraphernalia found in your premises after the house search, although that is not in the facts but is admitted by the prosecution; and that you were at all material times a drug dependent. 

13.  I must balance that with the factors that I consider appropriate to be able to determine the issues.  I did not consider a Newton hearing to be relevant in this case.  Mr Tang did not request for one either. 

14.  In this case the factors weigh heavily against the defendant that he was trafficking in these drugs.  The defendant was found at a place which was not his place of abode; he was carrying them in a public place; he went from a public place into a private building and back into a private building; the drugs were found in his pocket and were packaged in numerous packets a substantial number of 60, which overall was a considerable quantity of drugs.

15.  The quantity of drugs was not small at 9.96 grammes of a mixture containing 0.06 grammes of heroin. The street value of the drugs was some $8,000-odd and the defendant was at that time unemployed and on public assistance, having an income of $1,800. 

16.  I accept that of course the defendant may be a drug addict as he has had a previous conviction of possession of dangerous drugs in 2004 to which he was fined $2,000 or, failing which, 7 days’ imprisonment.

17.  I was satisfied that a very significant portion of these drugs must be for trafficking in dangerous drugs.  I cannot be satisfied that 2 grammes, which is a figure plucked out of the air, I suggest, from Mr Tang was for the defendant’s own consumption.  

18.  I must say that in the Court of Appeal case it is said at paragraph 34 that the courts must have regard to the dangers of the abuse of this avenue of mitigation, that part of the drugs were for their own consumption, the judge must look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the contention.  And again in paragraph 33, in drug cases, where traffickers are renowned for their attempts to circumvent the rigour of the court’s stern approach to drug offences, sentencers will need to examine with particular care any assertion by approved or self-confessed trafficker that part of his haul was for his own consumption.  They will be slow to accept a bare assertion unsupported by confirmatory evidence.

19.  They will remember that true cases of this kind, where the purpose of possession is mixed will almost always involve small quantities and they will have to bear in mind the quantity accepted as having been intended for self-consumptions carries a sentence in any event that this might itself be aggravated for the latent risk factor so that in most true mixed cases the difference in sentence, if any, will be slight. 

20.  The defendant is 50 years of age and has 18 criminal convictions.  He is single and living alone in a rented unit in Yaumatei.  He has been on public assistance for the past 10 years.  He receives rental allowance of $1,200 per month and $1,800 per month as public assistance. 

21.  He has no previous similar convictions for trafficking but one of simple possession.  

22.  Mr Tang mitigated that he had some luck on the day in question and won $5,000 playing mah-jong and bought the drugs from a man called “Mui Jig” who told him to get the drugs from top of the gate of the unit near where he was stopped by the police.

23.  After he obtained the drugs from the top of the gate, he was going down the stairs and he was arrested by the police.  I have to say that I find it very difficult to accept that just on the day in question it was his luck that he won at mah-jong and purchased these drugs for $5,000. 

24.  Furthermore, the drugs in question were worth some $8,000-odd at street value.  In the circumstance of this case, I do consider that even if the defendant had a small amount for his own consumption it would be a considerably small amount, such that would not in any event reflect the difference in sentencing for 8.06 grammes of heroin he was trafficking in.

25.  Defendant, you have pleaded guilty to trafficking in these drugs. The guidelines for trafficking in heroin are laid down in Lau Tak Ming. You fall within the first bracket of up to 10 grammes where a sentence of between 2 and 5 years’ imprisonment is appropriate after trial. 

26.  Given the amount of drugs you had of 8.06 grammes of heroin hydrochloride, I take a starting point of 4 years’ imprisonment.  Giving you full credit for your plea of guilty, I reduced that term to one of 2 years and eight months’ imprisonment to which you are so sentenced.