HKSAR v. SUM CHUN WAH

DCCC 446/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 446 OF 2013

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HKSAR
v
SUM CHUN WAH
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Before: HH Judge A. Kwok

Date: 14 June 2013 at 11:01 am

Present: Ms Mickey Fung, SSP of the Department of Justice, for HKSAR
Mr Dickson Pang, of YC Lee, Pang, Kwok & Ip, assigned by the Director of Legal Aid, for the defendant

Offence: Trafficking in dangerous drugs(販運危險藥物)

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REASONS FOR SENTENCE

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1. The defendant came before me this morning and pleaded guilty to a single charge of “trafficking in dangerous drugs”, contraryto section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2. The particulars of offence avers that the defendant:-

“… on the 20th day of February 2013, outside No 69 Fuk Wing Street, Sham Shui Po, Kowloon, in Hong Kong, unlawfully traffickedin dangerous drugs, namely, 12.71 grammes of a mixture containing 9.83 grammes of heroin hydrochloride and 6.04 grammes of a crystallinesolid containing 5.9 grammes of methamphetamine hydrochloride.”

The facts

3. This is a simple stop-and-search case. According to the Summary of Facts which has been admitted by the defendant, he was ridinga bicycle in the early hours on 20 February 2013 when he was found suspicious by the policemen in uniform, who decided to intercepthim from behind.

4. The defendant attempted to flee. After a brief chase, he was finally stopped outside No 69 Fuk Wing Street. Upon search, two piecesof tissue paper were found from the defendant’s right rear trousers pocket. One piece of the tissue paper was wrapping in a plasticbag sealed by an adhesive tape inside of which there was a plastic bag containing 6.04 grammes of a crystalline solid containing5.90 grammes of methamphetamine hydrochloride which is more commonly known as “Ice.”

5. The other piece of tissue paper was wrapped in a transparent resealable plastic bag which contained a total of 12.71 grammes ofa mixture containing 9.83 grammes of heroin hydrochloride contained in altogether 16 packets.

6. The defendant was immediately arrested and cautioned, under which he admitted the possession of dangerous drugs concerned and madethe claim that he helped someone to bring the packet of “Ice” and the packet of heroin. He also admitted knowledge that it was“Ice” and heroin.

7. The street value of the heroin was HK$8,031 and that of the “Ice” was $4,242. Thus, the total street value of the dangerousdrugs concerned altogether was HK$12,273.

8. Defendant was reportedly unemployed at the time of the incident and obviously, he was possessing the drugs for the purpose of trafficking.

Records and the background of the defendant

9. The defendant is now aged 39. He had in the past five previous convictions, all drugs-related, including two records of “traffickingin dangerous drugs” which were committed in 2002 and 2005 respectively. He was sentenced to 20 months’ imprisonment and 5 years’imprisonment for these two offences. Besides, he was also convicted of “keeping a divan” and also two “possession of dangerousdrugs” offences.

10. He was educated up to Form 4 level, and according to the mitigation by his solicitor, Mr Pang, the defendant used to be a transportationworker. In fact, after his release from prison in 2008, he became a truck driver earning an income of $10,000. That was his steadyemployment which he had kept for nearly four years until, he had an accident in May 2012 when he slipped on a wet floor surface andbroke his wrist. He also had his tendons of four fingers being injured, as a result, he could not resume his employment as a truckdriver.

11. The defendant had a divorce with his wife in 2010 and thereafter he was cohabitating with a girlfriend. They had two sons. Oneis about 3 years old and the other is 1 year old.

12. According to Mr Pang, the reason why the defendant committed the present offence is purely economic. He wanted to support the likelihoodof the two sons and the girlfriend when he was being unemployed.

13. In mitigation, Mr Pang urged the court to consider the plea of the defendant and also the guideline which applies to heroin and“Ice” separately, and in sentencing the defendant, considering the totality principle be adopted to arrive at a combined overallstarting point.

Sentencing considerations

14. “Trafficking in dangerous drug” is of course a very serious offence, one which needs to be deterred, and anyone who was involvedin this criminal activity would be expected to be dealt with severely by the court.

15. The defendant should know better because he had been involved and convicted in the same offence before. In his last convictionin 2005, he has already been sentenced to 5 years in the High Court. Although the court has sympathy for the conditions of the girlfriendand the two young infants, the Court of Appeal has said so many times before in authorities that family circumstances virtually playno part in cases involving serious crimes such as the present.

16. In this case, it involved two different kinds of dangerous drugs. One is heroin and one is “Ice.” In the case of heroin, accordingto the case of Lau Tak Ming v Another [1990] 2 HKLR 370for a quantity as high as about 10 grammes of heroin, the tariff sentence is 5 years. And according to AG v Ching Kwok Hung [1991] 2 HKLR 125 for the quantity of about 10 grammes of “Ice,” the tariff is set to be 3 to 7 years. Therefore, for the present quantity of“Ice” involved which is about 6 grammes, the tariff is about 5 years.

17. The two kind of drug is obviously different and governed by two different tariffs and when I approach the sentence of these twoquantities of drugs, I will use the combined approach.

18. In Wong Kin Kau (unrep) CACC269/2009, Tang VP has suggested how the court should deal with different quantities of two different drugs by comparingthem according to their different tariffs. According to the tariff that I have just spelt out, one can see that 10 grammes of heroincounts roughly the same sentence of about 6 grammes of “Ice,” and therefore that can be used as an indication that 10 grammesof heroin is as serious as 6 grammes of “Ice.” And according to the method suggested in Wong Kin Kau, on that basis, the defendant should be sentenced as if he had been in his possession of 20 grammes of heroin or 12 grammes of “Ice”by combining them together. If one uses this consideration and according to either of the tariff for “Ice” and heroin, one canimmediately see that the starting point of the present quantity of drugs should be 7 years.

19. There is also no evidence, according to the prosecution, that the drugs had been used to mix together to a cocktail to enhance theirpotency, and therefore there is no basis for further increase of this starting point.

20. On the other hand, there is no basis for any further reduction other than the customary one‑third discount on account of the plea. In the end, the defendant is sentenced to 56 months’ imprisonment.

( A. Kwok )
District Judge