HKSAR v. WONG WAI WAH

DCCC 854/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 854 OF 2016

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REASONS FOR SENTENCE

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Charge

1.  The defendant stood trial on a single count of trafficking in 12.7 grammes of a crystalline solid containing 12.5 grammes of methamphetamine hydrochloride, commonly known as “ice”, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

2.  The defendant pleaded not guilty to trafficking, but guilty to possession of the “ice”.

Issue

3.  It is not in dispute that the defendant possessed the “ice” described in the charge.  The only issue for consideration was whether or not the defendant possessed the “ice” for the purpose of trafficking in it or for the purpose of self-consumption. 

4.  After trial he was acquitted of the charge of trafficking in a dangerous drug, but was convicted of the charge possession of a dangerous drug.

Admitted facts

5.  The undisputed facts show that at around 9.04 pm on 11 April 2016 the defendant was arrested by PC10745 outside Ground Floor, Number 131 Fa Yuen Street, Mong Kok, Kowloon.  Upon search, a packet containing 12.5 grammes of “ice” was found in the defendant’s front left pocket of his trousers.  Under caution, the defendant claimed that it was for self-use. 

6.  The defendant was brought back to Mong Kok Police Station, where PC10745 took two records of interview with him.  Both of them were post records of what the defendant had said under caution at the scene of arrest.  That is, the defendant said, “The ‘ice’ is for my own consumption.  I have nothing else to say, and I lost my wallet two days ago and still have not applied for a replacement.”

7.  Between 1236 hours and 1252 hours on 11 April 2016, the defendant voluntarily attended a video recorded interview (“VRI”). 

8.  Under caution, the defendant claimed, inter alia, that:-

(1) he knew that the “ice” was a dangerous drug;

(2) he needed the “ice” for reducing stress and for refreshing himself;

(3) he had had the habit of smoking “ice” for two years;

(4) he had purchased the “ice” from a casual friend, Pai Chai, in Mong Kok that morning for HK$1,200 and Pai Chai said it would be much cheaper to buy half an ounce from him in one go;

(5) it was the second time he bought the dangerous drugs from Pai Chai;

(6) the “ice” seized was for his own consumption and it could sustain him for more than half a month;

(7) he smoked “ice” by using a glass bottle and a glass top, inserting a straw into the glass bottle, and using a lighter to burn the glass bottle;

(8) he took “ice” three to four times a day;

(9) he was a renovation worker earning around $20,000 a month and he spent around $2,000 a month on “ice”; and

(10) he lost his mobile phone in the morning after purchasing the “ice” from Pai Chai and therefore he had no means to contact Pai Chai.

9.  The estimated value of the “ice” at the material time was approximately HK$3,848, if calculated from purchases of five grammes or less, as contained in relevant police statistics.

10.  At trial, the defendant exercised his right not to testify nor call any defence witnesses.

Previous criminal convictions

11.  The defendant had attended court on 27 occasions, with a total of 49 previous criminal convictions, six of which were drug-related offences (five of possession of a dangerous drug and one of trafficking in a dangerous drug).

Antecedent statement

12.  The antecedent statement was read out in court and the defence took no issue as to the contents of it. 

13.  The defendant is now 47 years old.  Prior to the offence, he was a renovation worker and he resides with his wife and his daughter.

Mitigation

14.  On 8 May 2017, I adjourned the sentence and ordered for a Drug Addiction Treatment Centre suitability report. 

15.  Today, Mr Boyton informed the court that he has explained the report to the defendant, who agreed to it.  The report said that the defendant smoked cannabis in 1998 and he began to inhale “ice” in 1992.  In mid-2000 to mid-2012 he also abused Nimetazepam tablets occasionally.  The medical officer is of the opinion that the defendant is not a drug dependant.  He is therefore not suitable for admission to a DATC. 

16.  Mr Boyton referred to HKSAR v Mok Cho Tik [2001] 1 HKC 261 and submitted that it was appropriate for the court to enhance the sentence because of the latent risk involved.

Reasons for sentence

17.  After arrest for the present offence (that is, 11 April 2016), the defendant was put on bail.  According to the report, the defendant claimed that during his bail period he stopped abusing “ice” but continued smoking cannabis.  He was arrested by the police for other offences on 21 December 2016 and was remanded.

18.  The DATC report also said that he is not a drug dependant.  It is noted in his VRI that he said he was a renovation worker.  It is also noted in the undisputed facts that he was found to have in possession of the “ice” in the street, but not in his residence.

19.  In Mok Cho Tik, the Court of Appeal said at page 267B that, and I quote:-

“We remain of the view that the starting point for mere consumption of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months. Obviously, the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be.”

Starting point

20.  Taking all the circumstances into account, I am satisfied that, possession of 12.5 grammes of “ice”, a starting point of 18 months is appropriate.

Latent risk

21.  Again, in Mok Cho Tik, the Court of Appeal said at page 267D that:-

“The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are 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 drugs. The full circumstances of the risk must be assessed.”

22.  Taking into account that the defendant was stopped in the street at 9 pm on 11 April and that he told the police in the VRI that he bought the “ice” in that morning, the quantity involved was not small, and which, as the defendant claimed, could sustain for his consumption for more than half a month, and he has five previous convictions for possession of a dangerous drug and a conviction for trafficking in a dangerous drug, there was, in my view, a risk that the “ice” could have fallen into other hands.

23.  In the circumstances, I increase the starting point by 9 months to 27 months’ imprisonment.

One-third discount of sentence for plea

24.  The sentence must then be reduced by one-third to reflect the defendant’s intention to plead guilty to the offence of simple possession of a dangerous drug, had he been permitted to do so.

25.  Accordingly, the defendant is sentenced to 18 months’ imprisonment.

(Discussion re exhibits)

COURT: I believe there are no other outstanding matters to be dealt with.

MR BOYTON: No, but, my Lady, I know it doesn’t make any difference. It’s 9 am when he was arrested. You said “pm” twice.

COURT: 9 am?

MR BOYTON: Yes.

COURT: Not 9 pm.

MR BOYTON: Yes.

COURT: Right.

MR BOYTON: Just to give -- you said it twice. It doesn’t make a difference, I know.

COURT: Right.

MR BOYTON: Thank you.

COURT: Thank you.