HKSAR v. WU KWOK KIT

HCCC 154/2018

[2018] HKCFI 2164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 154 OF 2018

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

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COURT:

Mr Wu, you have pleaded guilty to one count of trafficking in dangerous drugs, one count of possession of dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and sections 8(1)(a) and (3) of the Dangerous Drugs Ordinance respectively, and to two counts of resisting a police officer in the execution of his duty, contrary to section 36(b) of the Offences Against Person Ordinance, Cap 212.

All four of these offences occurred on 17 March 2017, when the police sought to stop and search you one night, outside of a container at Ling Shan Tsuen, Sheung Shui, in the New Territories. When the police attempted to stop you, as you came out of the container, you hit one officer on the head with your mobile phone and you pushed another officer to the ground. Both of the officers had abrasions as a result.

When you were finally apprehended, you were seen to rip open a plastic bag causing some of the dangerous drugs to scatter on to the floor. ‘Ice’ was also found within the container, as well as, amongst other things, electronic scales, 149 resealable plastic bags and a bottle for consuming ‘Ice’.

You are not a man of good character. You have an extensive criminal record, dating back to 1996, when you were just 17 years old. Since then, you have been before the court six times for offences related to drugs, including three charges of trafficking for which you were sentenced to 4 years, 7 years 4 months and 3 years 8 months respectively. You also have offences of dishonesty and violence on your record.

Mr Ho has advanced no mitigation on your behalf, save for the fact that you say that one-third of what you agree you possessed for trafficking would have been consumed by you. You were offered a Newton Hearing, to show how that was the case, but that offer was refused.

Oher than the fact that you were found to have amphetamine in your system shortly after you were arrested, there is no other evidence from which the court can infer one-third of the drugs were for your consumption. On the contrary, you had electronic scales and 149 resealable plastic bags for your trafficking enterprise. I consider, if you were to consume any part of the drugs recovered from you that evening, then they would form part of Count 2.

Count 1 falls to be considered under the sentencing guidelines in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For up to 10 grammes, the band of sentencing is 3 to 7 years. The appropriate sentence is therefore one of 6 years 6 months, which I enhance to 7 years, given you previous offending record.

In HKSAR v Mok Cho Tik [2001] 1 HKC 261, the Court of Appeal maintained that the proper starting point for possession of dangerous drugs by a bona fide user should be between 12 to 18 months. Although the exact starting point would be considered on a case-by‑case basis and would inevitably involve the previous offending history of the offender, which may indicate that a higher starting point is called for.

Clearly, those drugs were found in circumstances where you were trafficking, but also consuming part of that which you trafficked. So far as the risk of you supplying others with drugs on a social or commercial basis, from that which you say you possessed to consume, the court needs to take into account the personal circumstances of the offender. For example, whether you were employed, whether your drugs were accessible to others, the amount of the drugs in question and your previous trafficking offences, if any.

Although this was a small amount, 2.36 grammes of ‘Ice’ and 0.12 grammes of methamphetamine, I consider that it too could have formed part of a larger amount, which was clearly for trafficking. However, it was only 2.48 grammes in all, and therefore I consider a starting point of 12 months appropriate for Count 2.

In HKSAR v Cheung Wai Leung HCMA 12/2007, the learned judge felt a starting point for sentence of 4 months appropriate for offending of this nature. By that, I mean the assault of an officer in the execution of his duty. As has been noted by the courts on previous occasions, and as I will reiterate now, assaulting police officers in the execution of their duties is a serious matter. We rely upon the uniformed services greatly and we expect them to be respected when they are carrying out their public duties.

I consider each of these offences to be serious and I do not take the view that they are part of a continuing offence. You have previous convictions for crimes of violence. The facts and the excuse given by you to the police, does not support that contention. You are prone to use force when it suits you. As such, these charges deserve to be enhanced to reflect that previous offending and they should attract individual sentences, to be served consecutively.

You will go to prison on Count 1 for 7 years. On Count 2, you will go to prison for 1 year, to run concurrently with Count 1, making a total of 7 years. On Count 3, you will receive a period of 6 months, to run consecutively to Counts 1 and 2 and on Count 4, you will receive a sentence of 6 months, to run consecutively to Counts 1, 2 and 3. That makes a total of 8 years.

You are, of course, entitled to a one-third discount for your indication of plea at an early stage, for which you are to be commended, and therefore you will go to prison for 5 years and 4 months.