HKSAR v. WONG WAI LAM AND OTHERS

HCCC395/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 395 OF 2009

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

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COURT:  The 1st defendant in this case pleaded guilty to one count of possession of dangerous drug being 4.98 grammes of a solid containing 3.28 grammes of cocaine, which is Charge 3 on the indictment. 

     The 3rd defendant pleaded guilty to one count of manufacturing a drug, being cocaine and to one count of trafficking in a dangerous drug.  The total narcotic content was 631.25 grammes.

     The 2nd defendant on the original indictment was not proceeded against as the prosecution offered no evidence.  No evidence was offered against the 1st and 2nd defendants on Charges 1 and 2.  Charge 4, against the 3rd defendant only, was ordered to be left on the file, not to be proceeded with without leave of the court or the Court of Appeal.

     The facts which the 1st and 3rd defendants admitted show that police from Narcotics Bureau laid ambush outside a public housing unit and intercepted the 3rd defendant as he left the premises. 

     Police entered the premises and found two men, one of whom was the 1st defendant, sitting in the main room.  A search was conducted pursuant to a search warrant.  A quantity of brown solid matter in a transparent, resealable, plastic bag was found in the 1st defendant’s trouser pocket and this is the drug, the subject of Charge 3.

     The premises was searched.  On a coffee table police found four packets of cocaine powder, a bowl and scissors containing small quantities of cocaine, a plastic bag of sodium bicarbonate, a scale and a chopstick with cocaine traces. 

     In a drawer in the bed was found 150 grammes of “crack” cocaine solid, 21 boxes containing a total of 339.91 grammes of powder containing sodium bicarbonate, an electronic scale with traces of cocaine and plastic bags suitable for packaging.  A cup with cocaine traces was found, as were two micro torches.  The air-conditioning filter was seized and later found to have cocaine traces on it.

     The Government Chemist attended the scene and gave as his opinion that crack cocaine was being made at the premises.  Cocaine hydrochloride and sodium bicarbonate were mixed to make the cocaine base which was known as crack and the micro torches were used as a heating source.  The traces of cocaine in the filter of the air-conditioner showed a handling process for cocaine had taken place on the premises.

     The 3rd defendant was the registered tenant and in a video interview taken later he admitted that he used the premises to “cook coke.”  He was given $1,000 reward for use of the premises and he said he manufactured the crack by mixing cocaine powder with the sodium bicarbonate in hot water. 

     In June of 2009 cocaine powder was estimated to cost about $800 a gramme and crack cocaine $1,184 a gramme.  The 752.30 grammes of powder containing cocaine that was seized could be sold for $601,840.  150 grammes of crack cocaine could be sold for $177,600.  The quantity of drug relating to charge 3 was valued at about $5,896. 

     The 1st defendant has a criminal record starting in 1997 with a 15 year sentence for trafficking in dangerous drugs.  His other conviction is in 2008 for driving whilst disqualified for which a sentence of one month, suspended for 12 months, was passed. 

     His antecedent statement recorded that he was educated to Form 3 level in Hong Kong.  He had previously been employed as a mason and then a window worker earning around $10,000 a month at the time of his arrest.  He was discharged from prison in 2006.  He is single and told the police that he lived with his girlfriend in a rented flat at Sham Shiu Po and his parents lived at Tai Po. 

     The 3rd defendant has a lengthy record starting in 1973.  He was convicted of drug offences in 1973, 1980 and 1982.  In 1998 he was convicted of two drug offences.  In 1999 he had three convictions for dangerous drugs including one trafficking charge for which he was given a 12 month sentence. 

     In 2001 he was convicted of two drug offences including one for trafficking and sentenced to 3 years’ imprisonment.  There was a further drug offence in 2007.  I note that he has been to DATC three times.  His other offences were for theft and MOTS. 

     He was born in Hong Kong, he is 57 years old and received primary education here.  He became unemployed in 1997 and thereafter lived on CSSA rate of $1850 a month.  He was last discharged from prison in 2008.  He claims that he has been addicted to heroin since 1974 and his record would tend to support that claim.  The accused was married with a son but he lived alone at the public housing unit where he was arrested.  His wife and son had left some time before. 

     The only mitigation in this case, as Mr Boyton says, is the pleas of guilty made by these two men.  They are entitled to a full discount for those pleas.

     In respect of the 1st defendant, the narcotic quantity for Charge 3 is 3.28 grammes and on the Lau Tak Ming guidelines which govern cocaine tariffs trafficking in  up to 10g calls for a sentence of 2-5 years.  However he is charged with possession only and 6-9 months is the appropriate range, I take a starting point of 9 months and sentence him to 6 months’ imprisonment, giving him the discount.  I activate the suspended sentence entirely and make it consecutive to the sentence on Charge 3 – a total of 7 months.

     In respect of the 3rd defendant, the quantity of drug which is involved is 631.25 grammes for the trafficking charge.  On the revised Abdallah tariffs, that quantity comes into the category of 600 grammes to 1200 grammes which merit 20 to 23 years’ imprisonment.  I take a starting point of 20 years and discount it by one-third to make 13 years and 4 months. 

     In respect of the manufacturing charge, that demands a higher sentence than the tariff sentence for trafficking.  I take a starting point of 21 years, with one-third discount, that comes to 14 years. 

     I order that those sentences run concurrently but one year of the sentence on Charge 2 is to be consecutive to the sentence on Charge 1 which makes a total of 15 years.