HKSAR v. WONG WAI SUN

DCCC 1026/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1026 OF 2015

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of resisting Police officers[1] (charge 1) and one charge of trafficking in dangerous drugs[2] (charge 2).

Summary of facts

2.  The defendant was the driver of a private vehicle RA1352 at about 02:29am on 20^th August 2015.

3.  Patrolling police officer PW1 saw RA1352 circled around the Causeway Bay area twice and then stopped outside CEO Neway karaoke on Sugar Street. A man emerged from the building and got into the front passenger seat for about 10 seconds and left. The defendant then drove off along Gloucester Road.

4.  Feeling suspicious, PW1 alerted his colleagues about the vehicle. At about 2:30am, PW2 and PW3 found the vehicle parked on Gloucester Road northbound near Great George Street. The uniformed Police officers approached the vehicle  and told the defendant to turn off the engine. The defendant complied.

5.  PW3 walked around the vehicle for inspection. PW2 was about to make enquiries with the defendant through the rolled down window on the driver’s side when the defendant suddenly started the engine. PW2 immediately raised his voice and told the defendant to stop the vehicle and turn off the engine. PW2 managed to reach into the car and switched off the engine and pulled out the car key.

6.  The defendant used his right hand to pull PW2’s wrist to stop him from taking out the car key. The defendant also tried to switch the engine back on. PW2 saw the defendant holding a package wrapped in white tissue with his left hand.

7.  PW3 heard the commotion and went to assist. They pulled the defendant out of the vehicle through the rolled down window of the driver’s side. The defendant struggled outside the car and threw the white package that he was holding under the car. PW1, 2 and 3 eventually managed to subdue the defendant.

8.  The white package was later recovered. Wrapped inside was one re-sealable transparent plastic bag containing multiple smaller re-sealable plastic bags. In all, there were 25 plastic bags containing a total of 5.74g of solid with a narcotic content of 5.04g of cocaine.

9.  Upon search, 4 mobile phones and cash of $6,102 was found on the defendant.

10.  The Police officers involved in the struggle suffered minor injuries as a result. They were treated and discharged on the same day.

Previous convictions

11.  The defendant has 5 previous convictions, 4 of which were for trafficking in dangerous drugs and 1 for robbery. His last conviction was in June 2014 when he was sentenced to 28 month’s imprisonment in the District Court for trafficking in dangerous drugs.

Mitigation

12.  The defendant is 33 years old. He was born and educated in Hong Kong up to Form 3 level.

13.  Mr. Wong for the defendant submitted that since the defendant’s discharge in his first trafficking in dangerous drugs conviction in about 2009, he started to take dangerous drugs including cocaine. He has been an on and off abuser, not a deep rooted drug addict.

14.  After his release in 2015, the defendant started to work as a casual construction site worker, mainly to line up telephone lines, earning about $12,000 per month.

15.  The defendant got divorced during his present remand. At the time of the offence, the defendant was living with his parents in public housing.

16.  It was put forward in mitigation that about half of the cocaine in the present case was bought for the defendant’s self-consumption. The defendant bought the cocaine on the night of his arrest from the person who went into his car that night for $8,000.

17.  The purchase money for the drugs came from the defendant’s father and the defendant’s friend. Before the defendant was sentenced in 2014, he had left his savings with his father who returned the money to the defendant, amounting to about $20,000 to $30,000.

18.  The defendant was also able to obtain repayment of a loan made to his friend which was about $10,000.

19.  The defendant was released from jail around 13^th August 2015. He committed the present offences around 7 days afterwards.

Sentence

20.  The maximum sentence for the offence of resisting Police officers in the execution of their duties is that of a fine of $5000 and imprisonment of 6 months.

21.  The maximum sentence on conviction upon indictment for the offence of trafficking in dangerous drugs is that of life imprisonment.

22.  It is not disputed that the tariff sentence for trafficking between 0 to 10g of cocaine is that of 2 to 5 years’ imprisonment[3].

Charge 1

23.  In relation to charge 1, the defendant’s resisting began when he pulled PW2’s wrist to stop him from taking out the car key, and continued with his struggle outside the car. It ended when the police officers managed to subdue him by pressing him onto the ground.

24.  The defendant’s resisting is not the worst of its kind. He does not have similar previous convictions. The only conviction involving violence was for robbery but that was almost 18 years ago and I do not find that as an aggravating factor.

25.  Although the Police officers did suffer injuries, they were minor injuries.

26.  I will order the defendant to pay a fine of $4,000, to be paid within 2 months.

Charge 2

27.  In relation to charge 2, the quantity of cocaine involved is 5.04g. Applying the tariff sentence mentioned above, I adopt a starting point of 42 months’ imprisonment.

28.  This is the defendant’s fifth conviction for trafficking in dangerous drugs. He committed the present offences just around 7 days after his latest release from prison. I was told that at the time of his release, his father returned to the defendant his savings of around $20,000 to $30,000. The defendant was also able to secure the repayment of a loan to his friend in the amount of $10,000. Since the defendant was staying with his parents, he was not in any immediate financial difficulties at the time of his release. Yet, he decided to go straight back into trafficking. The defendant is a repeated offender and I find this an aggravating factor.

29.  For this aggravating factor, I will increase the sentence by 6 months, taking the sentence to 48 months’ imprisonment.

Self-consumption

30.  As pointed out by Mr. Wong, the case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 provides guidance to the court when sentencing defendants who claim that part of the dangerous drugs is for their self-consumption:

“19. We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant. We need to emphasize that unless the judge has erred in principle, the appellate court should not interfere with a discount to sentence given by the judge on account of self-consumption of part of the drugs a defendant trafficked in.”

31.  The defendant claimed that about half of the cocaine seized was for his self-consumption.

32.  There is no direct evidence that the trafficking would be for financial gain. There is also no evidence as to whether the defendant was involved in premeditated and organized trafficking.

33.  The defendant had been in prison for slightly more than 13 months prior to his commission of the present offences. Assuming the defendant did not have access to drugs while incarcerated, and given that Mr. Wong had told me that the defendant was only an “on and off” drug user and not a deep rooted drug addict, the amount of drugs that the defendant needed should not be too much. Whatever amount he decided to keep for himself, it was more likely a matter of choice rather than compulsion.

34.  Having considered the circumstances of the defendant’s case, I find that an appropriate discount is that of 10% at 4.8 months. I will reduce the sentence to that of 43 months’ imprisonment.

35.  The defendant is then granted the usual one-third discount for his guilty plea and sentenced to 28 months and 2 weeks’ imprisonment.

Exhibits

36.  The prosecution’s application to confiscate the vehicle that the defendant was driving at the time of his arrest was opposed by the defendant.

37.  I find that whether on the defendant’s version of fact, that is to say, he was delivered the drugs by someone in the car, or on the prosecution’s case, that is to say, the defendant was using the car to get around while trafficking in the cocaine, the car was definitely being used in connection to the trafficking, either by the person selling to the defendant, or by the defendant selling to others.

38.  Therefore, pursuant to s.56 of the Dangerous Drugs Ordinance, Cap. 134, I order that the vehicle and its ignition key be forfeited to the Government.

39.  There was no objection to the prosecution’s application of disposal for the other items and I made an order in the same terms.