HKSAR v. SUM KA WA

HCCC126/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 126 OF 2009

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

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COURT:  Sum Ka-wa, you have been committed for sentence here to the Court of First Instance upon your plea of guilty in the Magistracy to a single charge of trafficking in dangerous drugs.  I will tell you now that I impose a sentence of 5 years and 8 months’ imprisonment upon you.  That comprises 5½ years in respect of this charge and 2 months in respect of the breach of suspended sentence.  I shall now explain why. 

You were found by police in possession of 32 bags containing 40 grammes of a substance, of which 30 grammes was cocaine, and two bags containing 30 grammes of powder, of which 19 grammes was ketamine.  You said you were delivering the drugs for someone for a payment of $1,500.  The street value of the drugs is about $38,000, most of which was attributable to the cocaine. 

You have been told that sentence for trafficking in dangerous drugs is generally determined by reference to the type and the narcotic quantity of the drugs.  The Court of Appeal has set sentencing guidelines for a number of different types of drugs so that all offenders are dealt with on a consistent basis.  As your counsel and I have briefly mentioned, sentencing problems can arise where a single charge involves trafficking in dangerous drugs of various types, for which different sentencing guidelines have been established.  

The Court of Appeal has considered this question on countless occasions, and alternative approaches have been suggested, which are sometimes labelled as the individual approach and the combined approach.  I want to say something about this.  I appreciate that you, Sum Ka-wa, are not interested in these technical aspects of the matter.  I say them only in the faint hope that the Department of Justice will review its approach.  I must say that I find it difficult to see why this problem has ever arisen or why it has occupied so much court time.  I have said more than once when I was a magistrate, and again in the District Court, and I say yet again here in the Court of First Instance, that the solution is and always has been simple: follow the rule adopted in England and Wales, which is the model for a great many aspects of our criminal justice system here in Hong Kong. 

The rule is this: except for those relatively rare cases where the drugs in question are actually mixed together, say into one tablet, drugs of different categories should be charged in different counts.  The sentencing court then considers what is the appropriate sentence for each count, and having done so it determines totality of sentence by what overlap, if any, there should be between the sentences on the different counts, a practice followed for other sorts of criminal offences day in and day out at every level of court in this jurisdiction.  In the United Kingdom drugs are classified into controlled drugs of class A, B or C.  Separate counts are drafted for each class.  Here cocaine would be class A and would appear as Count 1.  Ketamine would be class C and would appear as Count 2.  

Why the Department of Justice does not adopt such a practice in Hong Kong is unclear to me.  I suppose it originates in the fact that here there is no statutory classification for different drugs.  The categorisation comes from the guidelines which the Court of Appeal has over many years established for different types of dangerous drugs.  Of course where dangerous drugs are in the same category, say heroin and cocaine, they can appear in the same count.  But where they are known to be in different categories, such as cocaine and ketamine, they should appear in separate charges.  I cannot understand the problem.  The solution seems to me to be so obvious. 

So here, to circumvent the problems generated by this unimaginative approach of the Department of Justice, I shall act as if the two types of drugs which are in different categories, appear in different counts.  Applying the Lau Tak Ming guidelines, the starting point for sentence for this quantity of cocaine is 6 years’ imprisonment, which is to be reduced to 4 years to reflect the plea of guilty.  Applying the Hii Siew Cheng guidelines, the starting point for the ketamine should be 4½ years, which is also to be reduced by a third to reflect the plea of guilty.  And so the sentence there should be 3 years. 

If these were in separate counts, as they should be, I would order half of the sentence for the ketamine, the secondary drug, to be served concurrently, and half consecutively, thus adding 18 months to the 4 years for the cocaine.  Thus I shall impose a term of 5½ years in respect of this charge, which gives you, Sum Ka-wa, one-third off what would otherwise have been the overall starting point of 8 years and 3 months’ imprisonment. 

Your mitigation arises from your plea of guilty, and it is this which leads to the discount.  I recognise the remorse which you have expressed in the letter to the court and by your early plea of guilty.  I note the presence of members of your family in court who stand by you and support you.  This is a good thing for you.  So your sentence is 5½ years’ imprisonment on this charge. 

But you are in breach of a suspended sentence which was imposed upon you for a drugs offence and a poisons offence back in 2007, on 12 July 2007.  That combined sentence is 2 months, and it must be activated consecutively to the 5½ years.  

Thus the total is 5 years and 8 months’ imprisonment.