HKSAR v. WONG WAI MING

HCCC 494/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 494 OF 2015

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

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COURT:

The defendant is charged with one count of trafficking in a dangerous drug. He pleaded guilty at the pre-trial review hearing on 15 December 2016.

Particulars of the charge are that the defendant on 23 April 2015 at 17th Floor, Yuk Ping House, Long Ping Estate, Yuen Long, unlawfully trafficked in 100.81 grammes of a crystalline solid containing 100.23 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’, and 4.13 grammes of a solid containing 3.48 grammes of cocaine.

The defendant admitted the following facts. The defendant and a female, surnamed Lo, were intercepted by police officers who were laying ambush at the staircase of 17th Floor of Yuk Ping House at 8.50 pm on the charge date. Upon search, the following dangerous drugs were found concealed in a hidden compartment of the sling bag that the defendant was carrying. 100.81 grammes of a crystalline solid with narcotic contents of 100.23 grammes of methamphetamine hydrochloride were found in one plastic bag, 3.16 grammes of a solid containing 2.6 grammes of cocaine were found from 16 transparent plastic bags, 0.97 grammes of a solid containing 0.88 grammes of cocaine were found from six small transparent plastic bags.

The defendant had on his person, cash of HK$17,060 and renminbi 2,111. He had three mobile phones on him. The defendant was arrested. Under caution, he claimed that the things inside the bag were not his. It was a “Man Man” who asked him to go to Yuen Long to find her friend and that it had nothing to do with the defendant.

Nothing incriminating against the defendant was found in the subsequent search of his home. No fingerprint marks of value were found on the packets containing the drugs. At a later video-recorded interview, the defendant claimed, among other things, that the packets were given to him by the said female, Lo. The said female Lo whom the defendant had got acquainted with a few days ago. Lo asked the defendant to go to Yuen Long with her to give something to a friend of hers, whom the defendant did not know.

The sling bag did belong to the defendant. It was Lo who told the defendant to put the packets in the hidden compartment of the sling bag. The defendant claimed that he did not know the nature of the contents of the packets and he had not asked Lo about them. Lo did tell the defendant that the things were for a friend of hers. Lo went to the hotel where the defendant was staying on the morning of the offence date.

They slept in the room and got up in the afternoon. Inside the hotel room, Lo gave the drugs to the defendant to put in the sling bag. Lo received the phone call in the afternoon. Lo then asked the defendant to go with her to Yuen Long to give the packets to a friend. The taxi they took made a stop in To Kwa Wan and then Sha Tin before going on to Yuen Long. The defendant had got out of the taxi for a while, leaving the sling bag in the taxi.

The defendant claimed to consume ‘Ice’ many times a day. He worked as a part-time air-conditioner technician earning around $15,000 a month. The cash found on the defendant was his earnings which had just been given to him by his boss, a friend called Joe.

At the time of the seizure, the ‘Ice’ and cocaine had an estimated street value of $43,000 and $4,700 respectively.

Lo was later on released without being charged.

Previous Convictions

The defendant has been convicted of 27 previous charges, six of those were for possession of dangerous drugs. His last conviction was on 6 March 2012, when he was sentenced to 4 years and 11 months' imprisonment for trafficking in a dangerous drug. He was last released from prison on 21 October 2014, about six months prior to his commission of the present offence.

Mitigation

The defendant is 41. He got married in 2010 and has a 6-year-old daughter. I was told in mitigation that the defendant had given a non-prejudicial statement to the police but nothing came of it. As Mr Cheung for the defendant correctly pointed out, there can be no discount on sentence based on this attempt to assist the police.

The defendant claimed through counsel that he will never touch dangerous drugs again. He wishes to finish his sentence so that he can return to his family, in particular, his very young daughter. The defendant realises that he committed the present offence just six months after his last release from prison and that this will be viewed unfavourably by the court.

The defendant said it was due to financial reasons that he had committed the present offence but he is truly remorseful.

Sentencing Guidelines – ‘Ice’

According to the case of HKSAR v Tam Yi Chun CACC 524/2011, the sentencing range for trafficking between 70 and 300 grammes of ‘Ice’ is 11 to 15 years' imprisonment.

Cocaine

It was held in Attorney General v Pedro Nel Rojas[1994] 2 HKCLR 69, that the tariffs for trafficking in heroin in The Queen v Lau Tak Ming [1990] 2 HKLR 370 should apply to trafficking in cocaine. The sentencing range for trafficking in up to 10 grammes of heroin and hence cocaine is that of 2 to 5 years' imprisonment.

Sentence - The ‘Ice’

A mathematical approach to the sentencing tariff will lead to a starting point of bewteen 138 and 139 months' imprisonment for trafficking in 100.23 grammes of ‘Ice’.

The cocaine

A mathematical approach to the sentencing tarriff would lead to a starting point of 37 months' imprisonment for trafficking in 3.48 grammes of cocaine.

The Combined Approach

The more serious narcotic is ‘Ice’, making up 96.6 per cent in weight of all the seized drugs. Based on a combined approach, I will adopt a starting point of 139 months' imprisonment for all the narcotics. I will now proceed to apply the following two tests on this starting point.

The Absurdity Test

If all the seized drugs were the more serious ‘Ice’, the total quantity of 103.71 grammes will lead to a starting point of between 138 and 139 months which is the same as for 100.23 grammes of ‘Ice’.

The Conversion Test

0.31 grammes of ice would lead to a tariff starting point of 37 months' imprisonment which is the starting point for 3.48 grammes of cocaine. Adding 0.31 grammes to 100.23 grames of the seized ‘Ice’ in our present case would have a minimal effect on the starting point of between 138 and 139 months' imprisonment for 100.23 grammes of ‘Ice’. The chosen starting point of 139 months' imprisonment passes both of the tests and is the proper starting point.

Aggravating factor

The defendant was last released on 21 October 2014 after serving his last sentence which was also for trafficking in dangerous drugs. He had, therefore, committed a similar offence just about six months after his release. I find that this is an aggravating factor and that there should be an enhancement of sentence in the present case to try to deter the defendant from committing similar offences in the future. For this factor, I would enhance the sentence by 5 months leading to a post-enhancement sentence of 144 months' imprisonment.

Mitigating factor

As Mr Cheung for the defendant accepted, the defendant is not in a position to point to fruitful assistance regarding the information contained in his non-prejudicial statement. I find that there is only one mitigating factor and that is the defendant's guilty plea.

The one-third discount

The defendant enters his plea of guilty at the pre-trial review. According to the case of HKSAR v Ngo Van Nam, CACC 418/2014, a defendant who indicates a plea of guilty after the fixing of trial dates but before the first day of trial should be given a 25 per cent to 20 per cent discount. In our present case, the defendant was committed to the Court of First Instance for trial on 24 December 2105 which was before the date of the judgment in Ngo Van Nam on 2 Sepember 2016. Both parties agree that the new discount rules do not apply in our case and that the defendant should still be granted the full one-third discount for his plea of guilty. I agree.

Final sentence

The defendant is, therefore, sentenced to 96 months or 8 years' imprisonment. That is the sentence.