HKSAR v. HO KWOK WAI, RAY

HCCC 302/2014
HCCC 156/2015
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 302 OF 2014 AND 156 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The defendant has been convicted on his own plea on two charges of trafficking in a dangerous drug in two separate cases.

  In HCCC 302/2014, the Particulars of Offence provide that on 7 February 2014, at Nga Tsin Long Road, Kowloon City, Kowloon, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 14.87 grammes of a crystalline solid containing 14.65 grammes of methamphetamine hydrochloride, commonly known as 'Ice'.

  In HCCC 156/2015, the Particulars of Offence provide that on 12 December 2014, outside No 14A Boundary Street, Kowloon, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely, 82.3 grammes of a crystalline solid containing 79.9 grammes of methamphetamine hydrochloride.

  In HCCC 302/2014, the Summary of Facts admitted by the defendant provides that on 7 July 2014, PC11586 and PC5011 were on duty at around 2250 hours patrolling near a 7-Eleven convenience store on Nga Tsin Long Road. At that time, the defendant was observed coming out of a rear lane and approached a light goods vehicle, registration number

  NJ 1962, parked in Nga Tsin Long Road and then pulling open a door with his hand.

  The defendant aroused the suspicion of the police officers and they therefore intercepted him. PC11586 searched the light goods vehicle with the defendant’s consent. The defendant was in possession of a key to the vehicle. Police discovered a false ceiling in the said vehicle above the back of the driver’s seat, wherein the police found a transparent resealable plastic bag containing two transparent resealable plastic bags containing suspected methamphetamine hydrochloride, a packet of suspected methamphetamine hydrochloride sealed with adhesive tape, and a stack of 85 transparent resealable plastic bags.

  As a result of this discovery, PC11586 arrested the defendant for trafficking in dangerous drugs. Under caution, the defendant stated: “Ah Sir, I ‘dragged stuff’ for people only just because I have no money”. A subsequent search of the defendant revealed that he was in possession of a total of HK$12,439.20.

  Subsequent analysis by the Government Chemist confirmed that the suspected methamphetamine hydrochloride was in fact methamphetamine hydrochloride and that the total weight of the dangerous drug discovered by PC11586 was 14.87 grammes of crystalline solid containing 14.65 grammes of methamphetamine hydrochloride.

  The estimated street level value in February 2014 of the said dangerous drugs was HK$6,647.

  The said light goods vehicle was bought in May 2002 by the defendant but registered in his sister’s name. Thereafter, the defendant had sole and exclusive use of that vehicle.

  The defendant admitted that he was in possession of the said dangerous drugs for the purpose of trafficking.

  In HCCC 156/2015, the Summary of Facts admitted by the defendant provides that at around 0220 hours on 12 December 2014, at Boundary Street, some police officers spotted the defendant walking around suspiciously. The defendant was intercepted outside No 14A Boundary Street.

  Upon search, at the front right pocket of the defendant’s jeans, a lemon tea packaging box was found. Upon inspection of the packaging box, the bottom of the box was found to be open and it contained three packets of a white crystalline solid (subsequently certified to contain a total of 82.3 grammes of a crystalline solid containing 79.9 grammes of methamphetamine hydrochloride).

  The defendant was arrested. Under caution, he remained silent.

  The street value (in December 2014) of the dangerous drug seized was HK$35,965.

  The defendant admits and accepts that at all material times, he had knowledge of the dangerous drugs seized from him and he had possessed them for the purpose of trafficking.

  The defendant admits that the offence in HCCC 156/2015 was committed whilst he was on bail for the offence in HCCC 302/2014.

  By way of personal background, the defendant is 39 years of age. He was born in Hong Kong in July 1975. He has received education up to Secondary Form 3 level. At the time of arrest, he was working as a transportation worker. He had previously worked as an air-conditioner repair worker. The defendant is single. He resides with his elder brother in a public housing estate. The defendant has a 7-year-old son.

  The defendant has a total of 10 previous criminal convictions, five of which were drug related, with one being trafficking in a dangerous drug. That was in 2009, for which the defendant was sentenced to 12 months’ imprisonment.

  By way of mitigation, Mr Raymond Kong Hin-man, who appears for the defendant in both cases, submitted that the defendant has pleaded guilty in both cases at the earliest opportunity, thereby saving court’s time. Mr Kong further informed the court that the defendant’s 7-year-old son is financially supported by the defendant. Unfortunately, the defendant’s son suffers from a degree of language impairment. This had caused stress and financial pressure on the defendant, which led in part to his commission of the offences in question.

  Mitigation letters have been submitted by the defendant, as well as his sister and mother. However, I should make clear that for serious drug trafficking offences, the personal circumstances of a defendant offer little mitigation to his sentence.

  Dealing firstly with HCCC 302/2014, the drug involved is 14.65 grammes of methamphetamine hydrochloride. That offence was committed on 7 February 2014, ie, before the Court of Appeal handed down its Judgment in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 on 9 June 2014, which sets out revised tariffs for trafficking in the 'Ice' drug. Therefore, regarding the 'Ice' drug involved in HCCC 302/2014, the applicable tariffs are those set out in the case of Attorney General v Ching Kwok Hung [1991] 2 HKLR 125.

  In the Ching Kwok Hung case, for trafficking in between 10 grammes and 70 grammes of methamphetamine hydrochloride, the proper sentence to be imposed after trial was held to be 7 to 10 years’ imprisonment.

  In my view, based on the quantity of the narcotic involved (14.65 grammes of methamphetamine hydrochloride), the proper starting point for sentence for the offence in HCCC 302/2014 should be 7 years and 2 months’ imprisonment.

  Giving the defendant the full one-third discount for his guilty plea, the defendant is sentenced to 4 years and 9 months’ imprisonment in HCCC 302/2014.

  As regards HCCC 156/2015, the drug involved is 79.9 grammes of methamphetamine hydrochloride. That offence was committed on 12 December 2014, after the Court of Appeal’s decision in the Tam Yi Chun case.

  In the Tam Yi Chun case, for trafficking in between 70 grammes and 300 grammes of methamphetamine hydrochloride, the revised guideline starting point after trial was held to be 11 to 15 years’ imprisonment.

  In my view, based on the quantity of the narcotic involved (79.9 grammes of methamphetamine hydrochloride), the proper starting point for sentence for the offence in HCCC 156/2015 should be 11 years and 2 months’ imprisonment.

  Again, giving the defendant the full one-third discount for his timely guilty plea, the defendant is sentenced to 7 years and 5 months’ imprisonment in HCCC 156/2015.

  The offence in HCCC 156/2015 was committed whilst the defendant was on bail for the offence in HCCC 302/2014. Where one offence has been committed while the defendant is on bail for another offence, the sentence which results ought to be made consecutive to its predecessor unless, due to totality considerations, justice requires that they be partly concurrent.

  As to the question of totality, I think one can test the position by looking at the two extremes. If the two sentences are ordered to run wholly consecutively, they will result in a sentence of 12 years and 2 months’ imprisonment. On the other hand, at the other extreme, one would ask what would have been the sentence on the combined quantity of drugs involved in the two cases (ie, 94.55 grammes of methamphetamine hydrochloride). According to the Tam Yi Chun case, this would lead to a starting point of around 11 years and 5 months’ imprisonment after trial, and a sentence of 7 years and 7 months’ imprisonment after a one-third discount for guilty plea.

  However, against that figure, one has to bear in mind that there are two separate incidents of actual trafficking, which occurred some 10 months apart. Clearly, it is not just the totality of drugs in the defendant’s possession on both occasions which goes to the overall criminality of the offences, but also the separate acts of trafficking.

  Moreover, the fact that the offence in HCCC 156/2015 was committed whilst on bail is an aggravating feature, which demonstrates a serious disregard for the law on the part of the defendant.

  In all the circumstances of this case, being as merciful as I can and standing back as far as possible to assess the overall criminality of the defendant, I consider that the total sentence that should be imposed on the defendant is 9 years and 2 months’ imprisonment.

  Defendant, please stand up. For the offence of trafficking in a dangerous drug in HCCC 302/2014, you are sentenced to 4 years and 9 months’ imprisonment. For the offence of trafficking in a dangerous drug in HCCC 156/2015, you are sentenced to 7 years and 5 months’ imprisonment.

  Three years of the sentence in HCCC 156/2015 is to run concurrently with the sentence in HCCC 302/2014, and 4 years and 5 months to run consecutively. This results in a total sentence of 9 years and 2 months’ imprisonment.