HKSAR v. SIU CHI WO

HCCC 320/2019

[2019] HKCFI 3157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 320 OF 2019

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

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COURT:

The defendant Mr Siu Chi-wo pleaded guilty to one count of trafficking in dangerous drugs at the committal proceedings. The offence is contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Chapter 134.

The particulars of offence are that the defendant on the 19 September 2018 outside No 8, Waterloo Road, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely, 26.9 grammes of a crystalline solid containing 26.4 grammes of methamphetamine hydrochloride, and 23.9 grammes of a solid containing 18.9 grammes of cocaine.

He is committed to this court for sentence.

Facts admitted

At about 9.48 pm on 19 September 2018, police officers stopped and searched the defendant who had boarded a taxi in Waterloo Road. Inside the handbag of the defendant, the police found 2 plastic bags containing the dangerous drugs in question, which were 26.9 grammes of a crystalline solid containing 26.4 grammes of methamphetamine hydrochloride, commonly called ‘Ice’, and 23.9 grammes of a solid containing 18.9 grammes of cocaine. Under arrest and caution, the defendant admitted that the “coke” and the “pork” were for his own consumption.

Cash of $2,280 and 2 mobile telephones were seized from the defendant. The defendant refused to say anything in a video-recorded interview subsequently conducted.

According to the taxi driver, he, in response to a telephone booking, picked up the defendant at about 21.00 hours in Wong Tai Sin area to go to the junction of Waterloo Road and Shanghai Street. The defendant alighted there to smoke a cigarette and then boarded the taxi again telling the driver to go to Lai Chi Kok but was intercepted by the police.

The estimated retail value of the ‘Ice’ and cocaine was $12,804 and $34,368 respectively, making a total of $47,172.

Criminal records

The defendant has a clear criminal record.

Mitigation

The defendant is aged 35, single, educated up to Form 5 level, and had worked as a waiter, a plumber, a goldsmith and a construction site worker. At the time of offence, he was a bamboo scaffold worker earning $32,000 to $35,000 a month. His parents divorced when he was aged 10 and his mother has re-married. The mother is now aged 63 and the step-father 70.

The defendant started abusing dangerous drug in around 2001 and has been taking cocaine and ‘Ice’ since 2011. The counsel for the defendant says that one‑third of the dangerous drug was for the consumption of the defendant and asked for a discount in sentence in this regard.

The counsel tells the court that the defendant was the primary breadwinner of the family contributing about $18,000 a month to his mother. In order to earn quick money to shoulder his drug addiction and the medical expenses of his mother, who had received a brain surgery to remove a tumour, he foolishly committed the present offence.

The counsel helpfully sets out the sentences for the two types of dangerous drugs in the present case by adopting the three different tests discussed in the case of HKSAR v Chan Yuk Leong CACC 318/2013, 9 years 4 months imprisonment, 8 years 6 months imprisonment, and 8 years 7 months imprisonment for the absurdity test, conversion test and ratio test, respectively. The counsel emphasises that the defendant is a drug addict, relying on the urine test result of the defendant on admission to the correctional services department, which shows that his urine was tested positive for amphetamine and cocaine.

She asks the court to adopt a starting point of not more than 8 years 6 months imprisonment and give a discount to the defendant for his guilty plea and one-third of the dangerous drugs being for the consumption of the defendant. In this connection, the counsel cites the cases of HKSAR v Chow Chun Sang [2002] 1 HKLRD 1121 and HKSAR v Cheuk Kin Man [2010] 5 HKLRD 561.

The court is of the initial view that on the materials before it, it accepts part of the dangerous drugs being for the own use of the defendant, but not as much as one-third of them. When the defence counsel is informed about this, she tells the court that the defence will not take the matter further but will only rely on her submission.

The counsel also submits to court the mitigation letters of the defendant and his mother. In the letter, the defendant says that he became hooked on dangerous drugs when he foolishly believed people saying that taking dangerous drug could reduce his work stress. He also gives the reason for committing the present offence, which are similar to what the counsel has told the court. The defendant says that he is remorseful. The mother expresses in the letter good opinion of the defendant and says that the defendant is genuinely remorseful. They both ask for leniency of the court, so does the counsel for the defendant.

Sentence

The Court of Appeal set down sentencing guidelines for drug trafficking in ‘Ice’, in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, and those for trafficking in cocaine in AG v Pedro Nel Rojas[1994] 1 HKC 342, and R v Lau Tak Ming & others [1990] 2 HKLR 370. For a quantity of 10 to 70 grammes of ‘Ice’, the starting point is 7 to 11 years, and for a quantity of 10 to 50 grammes of cocaine, the starting point is 5 to 8 years imprisonment.

The amount of ‘Ice’ involved in the present case is 26.4 grammes, and the starting point for it alone is about 8 years 1 month imprisonment. The amount of cocaine involved is 18.9 grammes, and the starting point for it alone is approximately 5 years 8 months imprisonment.

As there are two types of dangerous drugs involved, the court is of the view that a combined approach is appropriate in determining the sentence to be imposed. Having considered the starting points, in adopting different tests as set out in the submission of the counsel for the defendant, the court is of the view that using the conversion test will achieve a fair and more realistic result. Of the ‘Ice’ and cocaine, the former is more potent and is of a bigger quantity. ‘Ice’ is, therefore, used as the primary dangerous drug for the purpose of sentencing. The amount of cocaine is converted into the equivalent quantity of ‘Ice’ and added to the amount of the ‘Ice’ in the present case to arrive at the starting point. The starting point of 5 years 8 months imprisonment for the cocaine is equivalent to about 6.7 grammes of ‘Ice’. The total amount of ‘Ice’ thus becomes 26.4 grammes plus 6.7 grammes, which equals 33.1 grammes. And this gives rise to a starting point of about 8 years 6 months imprisonment, which is the same as that set out by the counsel for the defendant.

The defendant committed this offence because of economic reason. This of course, cannot be an excuse to break the law and it is certainly not a valid mitigating factor. The court, therefore, adopts 8 years 6 months imprisonment as the starting point. The court accepts that a small part of the dangerous drugs was for the own consumption of the defendant and is prepared to exercise its discretion to give the defendant some discount in sentence for this reason. Taking this into consideration and giving credit to the defendant’s plea of guilty, the court sentences him to 5 years 4 months imprisonment.