HKSAR v. WONG KAM KAI

DCCC1342/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1342 OF 2009

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Reasons for Sentence

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1.  The Defendant pleads guilty to one count of possession of a dangerous drug (Charge 1) and another count of possession of apparatus fit and intended for the inhalation of a dangerous drug (Charge 2).

2.  In the early hours on 10 October 2009, a team of police officers were on duty at Kar Wong Building in Shanghai Street, Mongkok, Kowloon.

3.  At around 0051 hours, one of the police officers spotted a female leaving Flat C, 4th floor of Kar Wong Building (“the Flat”) and he immediately intercepted her. The police officer then escorted that female back to the Flat where a search warrant was executed.

4.  Upon entry, the Defendant was found in the living room of the Flat. A search was conducted and the following items were found inside a drawer in the bedroom of the Flat: one paper box containing a plastic bag containing a solid of a suspected dangerous drug, which was the subject matter of Charge 1; and a lighter, one glass bottle inserted with one plastic straw and containing some liquid, one piece of tinfoil containing traces of a suspected dangerous drug, which were the subject matters of Charge 2.

5.  The Defendant was arrested and, under caution, the Defendant said the dangerous drug was for his own consumption, and the glass bottle and the tinfoil belonged to him and he used those apparatus for consuming “Ice”.

6.  Subsequently a video-recorded interview was conducted with the Defendant, in which the Defendant confirmed what he said under caution at the scene.

7.  The Defendant also admitted that in late September 2009, he bumped into one “Ah Keung” in Mongkok, and “Ah Keung” showed him the dangerous drug and offered to sell it to him at $8,000. Although “Ah Keung” did not tell him what the dangerous drug was, he knew that the dangerous drug was “Ice” as he had consumed “Ice” before. He believed the dangerous drug was over 20 grammes. He paid $8,000 cash to “Ah Keung” and he took the dangerous drug home.

8.  He consumed the dangerous drug once only and he never offered it to anyone. He purchased the Flat a year ago in cash. He lived alone in the Flat and, apart from him, no one had the keys to the Flat.

9.  He further admitted that in early October 2009, he bought the glass bottle in Temple Street at the price of $120. He used the glass bottle, the plastic straw and the tinfoil once for consuming “Ice”.

10.  Upon an examination by the Government Chemist, it was found that the dangerous drug contained 18.08 grammes of a crystalline solid containing 17.69 grammes of methamphetamine hydrochloride. The glass bottle contained 16 millilitres of a liquid containing traces of methamphetamine, and the piece of tinfoil contained traces of methamphetamine.

11.  The Defendant is aged 51. Previously the Defendant had been convicted in respect of six charges, and only one of them was related to possession of a dangerous drug which was in 2009. He is now cohabitating with a woman, and he is the father of three teenaged children.

12.  He is one of the owners of two hostels in Mongkok area and his average monthly income is about $30,000 to $35,000. He owns two properties with no outstanding mortgage, one of which was the property in which he was arrested in respect of the present offence.

13.  According to Mr Cheng, senior counsel for the Defendant, the Defendant also has two bank accounts with a balance of over $300,000.

14.  As required by section 54A of the Dangerous Drugs Ordinance, I have called for a DATC report before sentencing the Defendant.

15.  The contents of the report are unremarkable. The Defendant came to Hong Kong from the Mainland in 1979. He mixed with some undesirable peers and he transgressed the law in the 1980s. The Defendant was able to live a law-abiding life when he met his present cohabitee in 1987. However, being bored with himself, he remixed with his former bad peers and he started to take “Ice” in 2008. He last consumed “Ice” in February 2010. As the Defendant is no longer a drug dependant, the Assessment Officer considers that the Defendant is not suitable for admission to the DATC.

16.  As I see it, the most important considerations on sentence for such type of offence are the quantity of the drugs involved and the risk that they would get into the hands of the public.

17.  According to the case of HKSAR v Wan Cheung Sum [2000] 1 HKLRD 405, for someone convicted of a simple possession of heroin and “Ice”, a three-step approach should be adopted:

(a) a starting point of between 1 year to 18 months’ imprisonment should be adopted for possession;

(b) enhancement to take into account the latent risk factor of redistribution of the drugs; and

(c) adjustment of sentence to take into account of mitigation.

18.  In Wan Cheung Sum, the defendant was a heroin addict. He had no record of any offence of drug trafficking. He was employed and the defendant kept the drugs in his apartment without other people knowing that he was doing so. Nevertheless, the Court of Appeal considered that latent risk factor attracted an additional sentence of 6 months’ imprisonment.

19.  In considering the latent risk factor, the Court of Appeal in HKSAR v Mok Cho Tik, CACC165/2000, indicated that the court should take into account factors such as whether the offender is in employment, whether the drugs are kept in a place to which others have access, whether the offender has convictions for trafficking, and of course the quantity of the drugs.

20.  In HKSAR v Jarhia Kuldeep Singh, CACC96/2006, the defendant was convicted of simple possession of 6.82 grammes of “Ice” and the Court of Appeal enhanced the sentence to take into account the latent risk factor by adding a further 12 months in the sentence.

21.  Mr Cheng submits that each case must be considered on its own facts. He urges the court to take into account the following factors in the present case:

(a) the Defendant is a drug addict and he has no previous conviction involving trafficking of drug;

(b) he is a man with substantial financial background and so there was no economic pressure for him to redistribute the drug; and

(c) the drug was found inside the drawer in the bedroom of the Defendant in the Flat, and the Defendant was living in the Flat and no one else had the keys to the Flat.

22.  As compared with the other cases which involved unemployed defendants, I agree with Mr Cheng that the risk of redistribution of drug was not particularly great in the present case.

23.  However, the quantity of drug involved in the present case was substantial. In Wan Cheung Sum, even though the Court of Appeal found that the risk of redistribution was not great, the Court of Appeal nevertheless enhanced the sentence by

6 months, apparently because of the quantity of the drug involved.

24.  Further, the DATC report indicated that the Defendant had mixed with bad peers and the court should not therefore overlook the risk of redistribution of the drug.

25.  As the quantity of “Ice” involved in the present case was substantial, I adopt a starting point of 18 months' imprisonment for the present offence in Charge 1.

26.  After considering the latent risk factors as mentioned above, I adopt a similar approach as the Court of Appeal in Wan Cheung Sum and enhance the sentence by 6 months' imprisonment, making a total of 24 months' imprisonment. Giving the Defendant one-third discount for his plea of guilty, the sentence is reduced to 16 months' imprisonment for Charge 1.

27.  For Charge 2, I adopt a starting point of 12 months' imprisonment. Giving the Defendant one-third discount for his plea of guilty, I reduce the sentence to 8 months' imprisonment, and such sentence is to run concurrently with the sentence in Charge 1.

28.  So the total sentence is 16 months' imprisonment.