HKSAR v. TO KWAN WING

HCCC 381/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 381 OF 2015

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

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COURT: Now I proceed to sentence you. As I already said to your counsel, the 1st count of conspiracy to traffic in a dangerous drug is overlapping partially with the 3rd count, trafficking in a dangerous drug.

The 1st count relates to the conspiracy which took place between a date on or about 31 January 2015 and 11 March 2015. That means it has been done in the period of about 40 days.

The 3rd count relates to a particular date which is 11 March 2015, and that relates to one single day.

A conspiracy in a crime is usually punishable with similar sentence as the crime itself. For the 3rd count, trafficking in a total quantity of 11.17 grammes of a crystalline solid containing 10.91 methamphetamine hydrochloride and 87 millilitres of a liquid containing methamphetamine, I merely consider the quantity of the pure substance, 10.91 grammes.

And according to the authorities that are cited on pages 631 to 632 of Sentencing in Hong Kong, 7th edition by Grenville Cross and Cheung, the sentencing guidelines for trafficking in “Ice” were given in the AG v Ching Kwok Hung [1991] 2 HKLR 125, with a typographical error amended in HKSAR v Capitania [2004] HKCU 926, as revised in HKSAR v Tam Yi Chun (Number 2) [2014] 4 HKC 256. And the guidelines state that for up for 10 grammes of “Ice”, the appropriate sentence would be 3 to 7 years’ imprisonment, and for 10 to 70 grammes the appropriate sentence should be 7 to 11 years’ imprisonment. That means if I apply the guidelines then at least you should receive a sentence of 7 years’ imprisonment on the 3rd count, and that should be the starting point.

But I have borne in mind what your counsel has addressed me most efficiently on partially the drugs were for your own consumption, and therefore I consider that the appropriate sentence for the 3rd count is 6 years’ imprisonment.

In regard to the 1st count, which is the conspiracy to traffic in dangerous drugs, as I have said before, that should be dealt with no different from the way for dealing with the substantive offence of trafficking, and therefore I will impose a sentence of 6 years’ imprisonment on the first count.

For the second count, which is keeping a divan, as I have mentioned in discussion with your counsel that was an added activity which attracts drug addicts to your flat to buy “Ice” from you. And the customary sentence for keeping a divan alone is 12 to 24 months’ imprisonment, and for that count I will pass a sentence of two years imprisonment on you.

The 4th count relates to an assault occasioning actual bodily harm, and in that count the witness Wong Lai-na received a black eye and a bruised left hand. And for those injuries there is no permanency, apparently. Because when she gives evidence her left eye has fully recovered apparently, and there is no medical evidence that the injuries will remain or have adverse effect on her. And therefore I pass a sentence of 3 months’ imprisonment for the 4th count.

And for the 1st count, 6 years’ imprisonment, for the 2nd count, 2 years’ imprisonment, and I order one of those 2 years to be consecutive to the 1st count’s sentence. For the 3rd count a sentence of 6 years’ imprisonment, I order one of those years to run consecutively to the sentences of the 1st count and the 2nd count. For the 4th count, the 3 months’ imprisonment I have given you, all the 3 months are to run consecutively to the other counts’ sentences.

That means, all in all, your sentences are in the total of 8 years and 3 months’ imprisonment. Do you understand?