HKSAR v. WONG KIT WAH

HCCC 374/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 374 OF 2016

-----------------

------------------

---------------------------------

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

---------------------------------

COURT: The defendant pleaded guilty before me to one count of trafficking in a dangerous drug. In sentencing, I have considered the whole circumstances of the case including its nature and facts, in particular, the type and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on her behalf.

The facts of the case may be summarised as follows. The defendant was intercepted by police officers for a search. During the search, the defendant dropped onto the ground a tissue paper wrapping containing two packets of ‘Ice’. The total quantity was 54.6 grammes of a crystalline solid containing 53.4 grammes of methamphetamine hydrochloride. Under caution, she said she got $200 for delivering the item to somebody.

I was told that the defendant is 53 years of age. She received education up to Primary 6 and has been unemployed for more than 13 years. She divorced with her husband because he had extramarital affairs. She had been relying on CSSA. She is not a first offender. In 2014, she was sentenced to 2 months’ imprisonment suspended for 12 months for an offence of fraud.

Learned counsel for the defence, Mr Lam, informed the court that the defendant has been suffering from depression and was attending outpatient medical attention. It was also asserted that about 25 per cent of the dangerous drug found was intended for the defendant’s own consumption. Mr Lam urged the court to take into account the guilty plea of the defendant and asked the court to accept that the previous conviction was for an offence not serious in the light that only a suspended sentence was imposed. Mr Lam also stressed that the defendant is very much concerned about her grandson who is now under the care of Social Welfare.

The court has considered the background report, psychiatric report and a medical report of the defendant. The defendant has also produced a letter in which she expressed her remorse. It was reported that after the divorce, the defendant began to have emotional problem. She started to consume drugs and had attempted to kill herself in August 2001 by burning charcoal. Though there was no significant cognitive impairment as a result, she suffered poor memory and hand coordination. She started to be treated for depressive disorder since 2005. She had not been able to engage in employment.

When her daughter gave birth to a baby boy, she looked after him. She also managed to stop taking drugs. However, in 2008, her daughter left home, deserting her child. Her moods turned low and she resorted to drugs again. In 2010, her daughter passed away because of cancer. The responsibility of looking after her 5 years’ old grandson was on the defendant. With medical care and drug treatment, her mental condition has now improved. It is opined that the defendant needs further psychiatric monitoring and treatment.

As regards the assertion of own consumption, I had informed the defence of my initial reservation and the defence was given the opportunity to consider its position as to how to substantiate the assertion of self-consumption. A report was eventually produced which indicates that urine test conducted on the defendant upon her remand showed positive result on methamphetamine. No Newton hearing was conducted.

The Court of Appeal held in HKSAR v Tam Yi Chun, CACC 524/2011, that in a case of trafficking in ‘Ice’ where the narcotic content was between 10 and 70 grammes, the sentence should range from 7 years to 11 years’ imprisonment. I see no reason in the present case to depart from the tariff.

As regards the assertion of self-consumption, I have had regard to the case of HKSAR v Wong Suet Hau, CACC 366/2000 and HKSAR v Cheung Man Wai, CACC 189/2015.

I have considered the whole circumstances, taking into account the positive result of methamphetamine of the urine test. I also note that the defendant had told the probation officer that she engaged in trafficking since she owed people money and was promised by the people who engaged her that she could retain part of the dangerous drug for her own consumption.

I am prepared to sentence on the basis that a proportion of the dangerous drugs in her possession was for the purpose of self-consumption. But the quantity of such purpose was lower than one-quarter which is the quantity the defendant asserted. I also bear in mind that possession of dangerous drug itself carries a term of imprisonment and that in the circumstances of the present case, the latent risk was very substantial.

Just taking the whole quantity of drug into account, the appropriate starting point will be slightly less than 10 years. If the quantity is deducted by one-quarter, a starting point of about 9 years will be attracted. In all the circumstances, I adopt an ultimate starting point of 9 years and 3 months.

The defendant pleaded guilty and for this reason, she is entitled to a one-third discount. I am persuaded to give her 2 more months of discount for what Mr Lam told the court. Having considered the whole circumstances of the case, in my judgment, this is the extent of discount the defendant is entitled to.

For the above said reasons, I sentence you to an imprisonment term of 6 years.