HKSAR v. SIU WING KEUNG

HCCC338/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 338 OF 2012

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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 Wing-keung, during the committal proceedings, pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

The particulars of offence are that the defendant, on the 11th day of April 2012, outside 77-81 Parkes Street, Yaumatei, Kowloon in Hong Kong, unlawfully trafficked in a dangerous drug, namely 27.35 grammes of a crystalline solid containing 26.10 grammes of methamphetamine hydrochloride.

He is committed to this court for sentencing.

Facts Admitted

On 11 April 2012 at about 0158 hours, the defendant was stopped and searched by the police outside 77-81 Parkes Street, Yaumatei.

A plastic bag containing the dangerous drug particularised in the charge, which was 27.35 grammes of a crystalline solid containing 26.10 grammes of methamphetamine hydrochloride, was found in his right trouser pocket. There was also cash of $8,000 on his person.

On being arrested and cautioned, the defendant admitted that the substance was “Ice” which he intended to resell to earn a living.

In a video-recorded interview conducted subsequently, the defendant admitted, inter alia, that he had purchased the “Ice” for $8,500 from “Ah Yung” intending to sell them at $800 per gramme, and of the $8,000 found on him, $3,000 were proceeds of selling the drug.

The estimated retail value of the “Ice” in question in April 2012 was $20,703.

Criminal Record

The defendant has 19 previous convictions, of which three were trafficking in a dangerous drug and another five were dangerous drug related. He was last convicted of an offence of possession of a dangerous drug on 21 June 2012, for which he was sentenced to 5 months’ imprisonment.

Mitigation

The defendant is aged 43, received education up to Form 2 level, and was unemployed at the time of the offence. He cohabits with his girlfriend and they are never married. Counsel for the defendant tells the court that the defendant is a drug addict and some of the dangerous drugs found was for his own use, consuming about 1 gramme a day when he needed it. He did not have any urge for the dangerous drug at the time of the offence, and intended to sell the whole amount.

The defendant pleaded guilty at the earliest opportunity and was co‑operative with the police in making full confessions after arrest. Counsel for the defendant points out that the amount of “Ice” involved in the present case is within the band of 7 to 10 years’ imprisonment in the sentencing guidelines set out in R v Ching Kwok Hung [1991] 2 HKLR 125. Counsel asks the court to be lenient to the defendant.

Sentence

As rightly pointed out by counsel for the defendant, the sentencing tariffs for the offence of trafficking in “Ice” were set out in the case of R v Ching Kwok Hung. According to this case, and perfected by the case of HKSAR v Capitania [2004] HKCU 926, for trafficking in an amount of 10 to 70 grammes of methamphetamine hydrochloride, the normal starting point is 7 to 10 years’ imprisonment.

The amount of methamphetamine hydrochloride involved in the present case is 26.10 grammes. The normal starting point is about 7 years 9 months’ imprisonment.

In the present case, there are two factors which may necessitate the court to enhance the starting point. First, the defendant has many previous convictions, including three offences of trafficking in a dangerous drug. Second, he confessed under caution that he had sold $3,000 worth of the dangerous drug before his arrest.

Taking into account that the last conviction of the defendant of the offence of trafficking in a dangerous drug was back in 2008 and that there are no details of the sale of the $3,000 worth of dangerous drug which is not part of the charge, the court decides not to enhance the starting point but follow the sentencing guidelines.

The court therefore adopts a starting point of 7 years 9 months’ imprisonment.

The only mitigation the defendant has is his plea of guilty. Giving him credit for that, the court sentences him to 5 years 2 months’ imprisonment.