HKSAR v. WONG YIK

DCCC 521/2019

[2020] HKDC 557

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 521 OF 2019

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REASONS FOR SENTENCE

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1.  Defendant is convicted on his own plea and agreement to summary of facts to a charge of trafficking in a dangerous drug.

Facts

2.  On 22 March 2019 at about 3:25 am, defendant was seen walking quickly on Temple Street acting suspiciously.  He was seen about to get on a private vehicle parked nearby but when a police officer came forward to stop him, he ran along Temple Street, Kansu Street onto Nathan Road.  At the same time, that private vehicle left at high speed. 

3.  Defendant stumbled and fell on the floor when he reached 383 Nathan Road.  Police intercepted him and searched his body and found one transparent resealable plastic bag containing 29 transparent resealable plastic bags containing 4.77 grammes of a solid containing 3.62 grammes of cocaine in his left front trouser pocket.  He also had $103.60 in cash and a mobile phone on him.

4.  Defendant was arrested.  Under caution, he claimed that the cocaine was for his own consumption.

5.  In the video recorded interview on the following day, defendant admitted that he put the cocaine in cigarettes when consuming the same and he would consume 4 to 5 grammes a day.  He said he received the drugs from someone else who owed him between 3,000 and 4,000 dollars as the repayment of the debt.  He had consumed some cocaine prior to his arrest.

6.  The estimated retail value of the drugs was $4,555.

Criminal record

7.  Defendant has five previous, with one similar being the last one, for which he was sentenced to 4 years and 2 months’ imprisonment.  He was released on 5 June 2018.

Mitigation

8.  Defendant was aged 25 at time of arrest.  He is now aged 26.

9.  He received education up to Form 4 level in Hong Kong and was said to be a decoration worker earning about $20,000 per month at the time of arrest.

10.  It was submitted by defence counsel that defendant started abusing drug at the age of 15, consuming both ‘Ice’ and cocaine and at the time of arrest, he consumed 4 to 5 grammes of cocaine every day.

11.  It was said, because of his drug abuse history, he was treated by psychiatrists at public hospitals. 

12.  Defence relied on the urine test performed by the CSD four days after the arrest to support defendant’s abuse of ‘Ice’.  He also relied on the medical reports from Kowloon Hospital, Queen Elizabeth Hospital and Caritas Medical Centre to show that the defendant has history of cocaine and ketamine abuse. 

13.  Defence counsel submitted the cocaine in question was only 3.62 grammes, which is less than a day’s consumption for the defendant.  He urged this court to accept that a significant proportion of the seized drugs was for his own consumption and therefore a further discount on sentencing, ranging between 10 per cent to 25 per cent, should be awarded to the defendant. 

14.  He also submitted that even if defendant’s stated consumption is not 4 to 5 grammes, as he said, taking the average daily consumption of cocaine as the same as heroin, the cocaine seized in question could last for 14.48 days to 5.17 days only, and if one-third of which was for defendant’s consumption, then the part of cocaine would only last for 4.83 to 1.72 days.

15.  Initially, defence counsel submitted that the sentencing starting point is 3 years and 9 months, but that was later revised correctly to 3 years and 1 month’s imprisonment.  He also urged this court to afford the defendant one-third sentencing discount in view of his guilty plea.

Discussion

16.  The drugs in question is 3.62 grammes of cocaine, agreed value of which is $4,555.  For trafficking of cocaine following the authority of Pedro Nel Rojas [1994] 2 HKCLR 69 and adopting the guidelines in the case of Lau Tak Ming [1990] 2 HKLR 370, the appropriate sentencing starting point is 3 years 1 month’s imprisonment, as suggested by defence counsel.

17.  Defendant was released from prison in June 2018 for a similar offence. He committed the present offence nine months after his release.  It is obvious that he is a persistent offender and the previous sentence has failed to deter him from further commission of the offence.

18.  This court, on this occasion, would not enhance the sentencing starting point, but had he been released on 1 March 2019, as the antecedent statement suggested, I have no hesitation to have the sentencing starting point enhanced.  Likewise, if the defendant appears before a court of law in future for a similar offence, I have no doubt that his sentencing starting point would be enhanced.

19.  Defendant has pleaded guilty and is therefore entitled to full one-third sentencing discount. 

20.  This court does not accept significant proportion of the seized drugs are for his own consumption.  This court has indicated during the hearing that a Newton hearing would be conducted on this issue but the defence has indicated that they were not willing to proceed with the same. 

21.  The monthly income of the defendant at the time of arrest is said to be $20,000.  On apprehension, he said he is a cocaine user and used daily 4 to 5 grammes of cocaine and he has just taken cocaine before the arrest.

22.  The present drugs seized is 3.62 grammes of cocaine and worth around $4,500. As this court has indicated earlier, had what the defendant told the police was true he would have to spend monthly of over $150,000 just on cocaine alone.  It is absolutely necessary for him to busily traffic the drug to earn extra income to support his drug habit.

23.  Defendant had a previous similar conviction for trafficking.  The drugs seized, totalling 3.62 grammes, were placed in a transparent resealable plastic bag in which 29 packets of cocaine were placed in resealable transparent plastic bags.  These drugs were found on the defendant in the early hours in the street when he was about to board a private vehicle and, instead of getting on this vehicle, defendant had fled and the private vehicle also drove away fast.

24.  The urine test performed by the CSD four days after defendant’s arrest did not support defendant had consumed any cocaine before his arrest.  In fact, the test result was cocaine negative.

25.  The other medical reports did suggest that defendant had history of abusing cocaine and amphetamine.  This court also noted that the value of drugs seized on the defendant on the day cost about one-fourth of the stated monthly income of the defendant.

26.  In the circumstances, even though this court accepts that defendant is a cocaine user, this court fails to accept he was using significant proportion of the drugs seized for his own consumption.  Accordingly, no further discount on sentence would be afforded to the defendant[1].

27.  This court has also further considered all the mitigation advanced by defence counsel but was unable to find any further useful mitigating factor.

28.  Accordingly, defendant is sentenced to 2 years 20 days imprisonment for the offence.