HKSAR v. WONG KAI CHUNG

DCCC345/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 345 OF 2011

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Reasons for Sentence

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1.  The defendant appeared before me this morning and pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2.  The particulars of the offence aver that the defendant on the 28th day of January 2011, inside the male toilet, Maxim’s MX, 1st Floor, Mongkok East MTR Station, Mongkok, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 33.07 grammes of a sold containing 21.79 grammes of cocaine.

The Facts

3.  The facts are simple enough.  It is a stop and search case.

4.  According to the amended Summary of Facts, which was admitted by the defendant, at the date of the offence at about 2005 hours Customs officers saw the defendant acting suspiciously at the pedestrian pavement off the taxi stand outside an exit of the Mongkok East MTR Station. As a result, the officers approached and intercepted the defendant and brought him to the nearby male toilet of the Maxim’s restaurant situated on the 1st Floor of the MTR Station for further investigation.

5.  A thorough body search was conducted inside the toilet and one of the Customs officers was able to find inside the defendant’s underpants a transparent resealable plastic bag containing a total of 103 smaller transparent resealable plastic bags, each containing a solid suspected to be cocaine.  The defendant was therefore immediately arrested and cautioned.  Under caution, he told the officers that the suspected dangerous drugs were cocaine and were for his own consumption.

6.  The exhibits were later sent to the Government Laboratory for chemical analysis, and as a result, it was confirmed that the exhibits contained the exact quantity of cocaine as described in the particulars of the charge in this case.

Criminal Records and Personal Background of the Defendant

7.  The defendant is now aged 42.  He was born in Hong Kong and is married.  In the past he has a total of 59 previous convictions records in Hong Kong with 23 dangerous drugs-related.  His last conviction is also a similar trafficking in dangerous drugs record for which he was sentenced by the District Court for a total of 3 years and 4 months’ imprisonment in 2008.  I was told that he was later discharged from the prison in February 2010.

8.  Today, in mitigation, Mr Chan, counsel appearing for the defendant submitted to the court a letter from the defendant’s employer. It was confirmed that the defendant was working as the supervisor of a mobile telephone shop in the Mainland with a basic salary of RMB15,000 from September 2010 to January 2011.  His work performance was praised by his superior. 

9.  As said, the defendant was married and the wife is a housewife and they have a son now aged 7.  They are all living in the Mainland.

10.  The defendant had a cataract problem in his right eye and as a result he lost his eyesight altogether. 

11.  The chief mitigating factor is of course his plea of guilty.  The defence relys heavily on this as a clear indication of remorse on the part of the defendant. 

12.  Although the defendant had a poor record of dangerous drugs-related convictions in the past, Mr Chan had also made use of this and successfully persuaded the prosecution to agree that in fact one-third of the present quantity of cocaine found on the defendant are indeed for his own consumption.

Sentencing Considerations

13.  Trafficking in dangerous drugs is of course a very serious offence.  The defendant should know this better because he was last convicted of a similar offence of a lengthy sentence in the District Court and he was just released for a year before he committed the present offence again.

14.  Anyone who gets involved in this kind of criminal activities will expect no mercy from the court. 

15.  While on the one hand, it was accepted that one-third of the drugs were for his own consumption therefore the court should adjust the sentence in order to reflect the fact that not all the drugs were for trafficking, however, on the other hand, I must not lose sight of the fact that the defendant was a repeated offender and the previous sentence, while it was already quite lengthy, was clearly still not enough to deter him from re‑offending again. 

16.  The court has to stress here that I am not sentencing on the defendant’s record but as had said in the case of HKSAR v Chan Pui Chi, [1999] 2 HKLRD 830, there is a duty on the court to increase the sentence of a repeated offender, not to punish him for his poor criminal records but to send a message to the defendant and to deter him from re-offending again.  There is clearly an element of protection to the public as well.

17.  The dangerous drugs in this case is cocaine, which, as we all know, is a kind of a hard drug.  The tariff guideline laid down in Lau Tak Ming (CACC 230/1989) applied to both heroin and cocaine.  According to the tariff, between the quantity of 10 to 50 grammes, the sentence will be between 5 to 8 years.

18.  The agreement between the prosecution and the defence means that 7.26 grammes would have to be taken out from the total quantity of drugs and the sentence, according to the tariff as reduced in the quantity, would have been around 5½ years.

19.  However that is not the end of the matter.  Clearly the 7.26 grammes which is said to be self-consumption does in itself carry a term of imprisonment.  I will be also required to consider to enhance the sentence for simple possession of this 7.26 grammes in order to reflect the latent risk factor as clearly some of the drugs might find a way into the hands of the others (See HKSAR v Wong Suet Hau & another [2002] 1 HKLRD 69).  Coupled with the fact that the defendant is a repeated offender in the end, I think a 6 months’ enhancement is appropriate. 

20.  After carefully considering the matter in the round I therefore conclude that the proper starting point in the defendant’s case should be one of 6 years.  The defendant pleaded guilty and for that he would enjoy the usual one-third discount.

Order

21.  The sentence that I shall impose in respect of the charge is therefore one of 48 months’ imprisonment.