HKSAR v. Somboonburana Pumin

HCCC 170/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 170 OF 2016

_______________

_______________

________________________

REASONS FOR SENTENCE

________________________

1.On 8 April 2016, the defendant pleaded guilty to two charges of trafficking in a dangerous drug in committal proceedings at Eastern Magistracy. He was committed for sentence to the Court of First Instance.

2.The particulars of the first charge were that on 26 October 2015, the defendant outside the Island Building in Wan Chai trafficked in a dangerous drug, namely 996 g of a powder containing 618 g of cocaine.  The particulars of the second charge were that on the same day, the defendant at the Ground Floor at premises at 86 So Kwun Wat Tsuen Road, Tuen Mun, trafficked in a dangerous drug, namely 3,289.24 g of cannabis in herbal form. 

3.The facts agreed giving rise to the two offences can be briefly stated as follows.  On 26 October 2015, in the evening, the police intercepted the defendant outside the Island Building in Wan Chai.  The police searched the defendant and found in a rucksack that he was carrying a plastic bag containing a total of 996 g of a powder containing 618 g of cocaine.  The defendant was arrested and cautioned in Cantonese, and replied in Cantonese, “It’s my first time helping others to deliver cocaine; we haven’t agreed on the price yet.”

4.In a subsequent cautioned interview conducted in Cantonese, the defendant stated as follows:

(a) He was born in Thailand but he studied from primary 3 to secondary 5 in Hong Kong. He could read and write Chinese and that he did not need an interpreter.

(b) Around two weeks prior he became acquainted with someone nicknamed “Lo Yau” in a pub in Tsim Sha Tsui. “Lo Yau” knew he was unemployed so they exchanged telephone numbers so that later “Lo Yau” would get him to do a delivery job.

(c) On 26 October 2015, by arrangements with “Lo Yau”, the defendant collected a rucksack from a stranger in Causeway Bay. The defendant was instructed to deliver the rucksack to Wan Chai.

(d) The defendant opened the rucksack and saw a bag of cocaine. The defendant then carried the rucksack and quickly walked towards Wan Chai as instructed, and hoped to get the delivery job done as quickly as possible.

(e) The defendant was expecting a monetary reward of HK$3,000 to $4,000 for doing the delivery job.

5.On 28 October 2015, the landlord of Ground Floor of premises at 68 So Kwun Wat Tsuen Road, Tuen Mun, New Territories, (the flat), used his spare key to gain access into the flat.  He found suspected cannabis inside.  The flat was at the time rented to the defendant.  The landlord made a report to the police the following day.  The police attended the flat and found 17 plastic packets containing a total of 3,289.24 g of cannabis in herbal form.

6.The police conducted another cautioned interview in Cantonese with the defendant in which he stated as follows:

(a) In June 2015, he commenced renting the flat for a monthly sum of HK$10,000.

(b) On 26 October 2015, he followed instructions from “Lo Yau” to collect a bag of things from a stranger in Siu Lam. He brought the bag of things back to his flat. He opened it and found around 8 to 9 packets of cannabis. He weighed them and found that it was around 3 to 4 kg in weight.

(c) He was expecting a monetary reward of HK$5,000 to $6,000.

(d) The electronic scale, the sealing machine, and the small plastic bags that were found in the flat were purchased by him upon instructions from “Lo Yau”, so that he could pack the cannabis into smaller packets of 14 g each.

7.In October 2015, the retail value of the cocaine and cannabis seized in this case were estimated to be around HK$1,061,736 and HK$342,081 respectively.

8.The defendant admits that on 26 October 2015 he was unlawfully trafficking in the cocaine and cannabis seized.

9.The defendant at the time of the offence was 30 years of age.  The defendant is single and at the time of the offence lived in Tsz Wan Shan with his parents.  He was born in Thailand and came to Hong Kong at the age of 11 to be with his natural mother who had remarried.  He had attained form 5 education in Hong Kong and after he left school worked full time at a soft drink factory and later as a waiter.  I am told that he left his job as a waiter and became unemployed.  It was during this period that he accrued substantial debt and starting mixing with the wrong crowd.  However, his criminal record would indicate that he has been a troublesome youth.  In April 2001, he was convicted of possession of dangerous drugs and put on probation for 12 months.  In June 2001, he was convicted of offering for sale infringing copies of copyright works and sentenced to serve 48 hours of community service and fined $1,500.  In January 2003, he was convicted of two triad related offences and put on probation for 18 months.  In May 2004, he was convicted of pick pocketing and sentenced to serve 150 hours of community service. In December 2004, he was convicted of possession of and dealing with non-dutiable goods and sentenced to a rehabilitation centre.  I accept, however, as submitted by Mr Paul Lee, counsel for the defendant, that the previous convictions date back to about 10 years ago when he was a teenager and that he has not been in trouble with the law since then. 

10.Both the defendant and his stepfather have submitted a letter to the Court asking that he be treated leniently when sentenced.  The defendant has expressed his regret and acknowledges his wrongdoing.  He is concerned about the long term of imprisonment he is likely to receive and the impact that this would have on him and his family.  It is regretted that he did not consider this before embarking on the crimes that he now admits committing. 

11.As is required by law, the defendant is to be sentenced separately in relation to each offence.  The two offences occurred on the same day but arise in two entirely different sets of circumstances.  I will therefore sentence in relation to each offence and apply the totality principle to ensure that an appropriate effective total sentence is passed.  The overall sentence must not be unduly excessive, or disproportionate to the totality of criminality involved.  It should not be a crushing sentence but a just and balanced one. 

12.Overall the submission on behalf of the defendant provided little, if any, meaningful mitigation because of the grievousness of the offences.  Both offences involved large quantity of drugs with the more serious offence being the first charge which involved a large quantity of cocaine. 

13.Cocaine and heroin are equated for sentencing purposes and the tariffs as fixed for heroin in R v Lau Tak Ming [1990] 2 HKLR 370 apply to cocaine.  This was confirmed in AG v Pedro Nel Rojas [1994] 1 HKC 342. 

14.According to the sentencing guidelines for the quantity of narcotic content involved of 618 g of cocaine, the defendant is in the band of 600 to 1,200 g where the guideline starting point for traffickers after trial, subject to any enhancement, is 20 to 23 years’ imprisonment.  According to the narcotic content of cocaine in this case, I will adopt a starting point of 20 years’ imprisonment.  See R v Lau Tak Ming [1990] 2 HKLR 370; HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197.  The defendant has pleaded guilty and he is entitled to a one-third discount to the starting point, thereby resulting in a sentence of 13 years and 4 months’ imprisonment.

15.According to the sentencing guidelines as set out in Attorney General v Chan Chi-man [1987] HKLR 221 and Attorney General v Tuen Shui-ming and Another [1995] 2 HKC 798, for the quantity of narcotic content involved of 3,289.24 g of cannabis, the defendant is in the band of over 3,000 g where the guideline starting point for trafficking is 24 to 36 months’ imprisonment.  However, it has been acknowledged that herbal cannabis is weaker than cannabis resin and an appropriate adjustment downwards should be made to these sentencing guidelines.  In HKSAR v Chor Lui [2001] 3 HKLRD 95, the Court of Appeal on this issue suggested a benchmark tariff sentence of 4 months’ imprisonment for trafficking in under 2,000 g of herbal cannabis.  I will adopt a starting point of 12 months’ imprisonment bearing in mind the nature and quantity of the cannabis involved and the circumstances of the case.  The defendant was found to be in possession of packaging equipment for distribution of the cannabis which he admits.  With a reduction of one-third for his plea of guilty, this will result in a sentence of 8 months’ imprisonment.

16.The combined sentences are 14 years and 4 months’ imprisonment.  Taking into account the totality principle, I will sentence the defendant to 13 years and 6 months’ imprisonment.  In order to achieve this sentence, I will make the sentence on the 2^nd charge concurrent to the sentence on the 1^st charge as to 6 months of the 8 months’ imprisonment. 

17.The defendant is accordingly sentenced to 13 years and 6 months’ imprisonment. 

Mr Bobby Cheung, SPP of the Department of Justice, for HKSAR

Mr Paul Lee, instructed by Chiu Szeto & Cheng, assigned by Director of Legal Aid, for the defendant