HKSAR v. Wu Chun Ming, Mandel

HCCC 26/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 26 OF 2016

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: Defendant, you have pleaded guilty to three separate offences before this court. Those three offences were committed on 12 January 2015 at Room 3411, Yat Man House, Ho Man Tin Estate.

In the 1st charge, that was a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, you admitted that you unlawfully trafficked in a 121.20 grammes of a crystalline solid containing 118.90 grammes of methamphetamine hydrochloride.

The 2nd charge is a charge of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance. You admitted that you were in possession of 0.09 grammes of a solid containing cocaine, and 1 tablet containing 9 milligrammes of nimetazepam.

The 3rd charge is one of possession of a forged document of identity, contrary to section 42(2)(c)(i) and (4) of the Immigration Ordinance. You admitted that you had in your possession a forged document, namely an acknowledgement of application for a Hong Kong Permanent Identity Card.

On 12 January 2015, police officers mounted an anti‑narcotics operation outside your premises. At about 7.16 pm you were seen to be leaving the premises. The police officers declared their identity and attempted to intercept you outside your premises. However, you returned into your premises and shut the door. You were then requested to open the door by a police officer informing you that he had a search warrant and authority to search the premises. However, the officer’s request was not complied with so the police officers forcibly entered the flat. After a brief struggle with the officers, you were subdued.

Upon entry to the premises, your girlfriend was inside. The police officers conducted a search on you and found on you a packet of ‘Ice’, a tablet of nimetazepam and a forged acknowledgement of application for a Hong Kong ID card in your possession. The search of the premises yielded other packages of drugs, packing equipment, an electronic scale, straw segments, plastic straws, tinfoil and a glass tube.

Upon arrest and caution for the offence of trafficking, you said that the drugs were for your own self-consumption. Under arrest and caution for the offence of possession of a forged document of identity, you said that the forged document was prepared by Ah B.

In a video-recorded interview, you said you had breached your supervision order and hence you asked Ah B to make a forged identity document for you. You paid $1,000 to Ah B. In the same interview, you also said you were a habitual consumer of ‘Ice’.

The street value of the drugs seized was $51,643.

Defendant, you are 35 years of age and, I am told, are divorced. You have three children with your ex-wife. Your mother is now taking care of those three children. At the time of arrest, you had a 1-year-old son with your girlfriend who was found in the premises. Your girlfriend had since given up custody of your 1-year-old son, and as you are not in a position to look after your son, you too had to give up custody and now your son has been put up for adoption. Ms See has informed me that you have asked her to express this to me as you feel very sorry to lose your son.

You have 14 previous convictions, 11 are related to drugs: 8 of them are possession of dangerous drugs; and 3 of them are for trafficking in dangerous drugs.

The first offence for trafficking was in 2004 to which you received a 2½ year sentence of imprisonment, and the other two trafficking charges was in 2008, to which you received a sentence of 4 years’ imprisonment for those two charges. Since then, that is some 8 years ago, you have had numerous related offences to possession of dangerous drugs.

Ms See informs me that the record is obvious, that it can be seen that you are a drug dependent. In fact, a medical report by the Correctional Services Department states that a urine specimen collected from you three days after your arrest and whilst in custody at the Lai Chi Kok Reception Centre, the test showed a positive result to amphetamine.

On this basis, her mitigation is based on the fact that part of the drugs that you were trafficking in were for your own consumption. Although you were working at the time, you did not have enough money to support your habit and thus you would sell drugs to friends and make money to support your drug dependency. Ms See says that part of the drugs was for your own consumption, but admits that the bulk of which were for trafficking.

As for trafficking, the guidelines are clearly set down in the case of Tam Yi Chun, trafficking in ‘Ice’, and I shall follow those guidelines in sentencing you.

In respect of Charge 3, Ms See said that she is unable to find, despite her research, any cases of similar facts to the present case before me. Ms See has referred me to a case of HKSAR v Bodomo Marissa Flores HCMA 343/2005 where the appellant there had provided false documents in relation to identity to the Immigration Department. In that case, the court took a starting point of 6 months’ imprisonment.

I also referred Ms See to the case of Li Chang Li HCMA 935/2004. Ms See seeks to distinguish this case from the present on the basis that this case deals with those persons present in Hong Kong with a forged ID card to seek employment.

In my view, this case is more relevant than the case cited by Ms See, although the issue was upon those seeking employment in Hong Kong with forged documents. I refer to paragraph 35 where the court states that:

“General speaking, a document of identity cannot possibly be a plaything or a collector’s item. It follows that people who possess forged identity cards or identity cards belonging to others must be doing so for the purpose of concealing their true identity so that they can work illegally in Hong Kong. This is so whether their presence in Hong Kong is lawful or not.”

Paragraph 36 goes on to state:

“Under these circumstances, the degree of culpability of a person who possesses a forged identity card or an identity card belonging to another has nothing to do with the lawfulness or otherwise of his presence in Hong Kong. Of course, to remain in Hong Kong unlawfully is an offence in itself, for which the offender will receive an appropriate sentence.”

In this case, of course, the defendant is a Hong Kong Permanent ID card holder. He is, therefore, lawfully present in Hong Kong. He possessed this forged document for the purpose of concealing his true identity. This was because he had breached his supervision order from the Drug Addiction Treatment Centre as he failed to report upon release and he had it in his possession so that his true identity could not be detected.

I consider that a person who has a forged identity card for the purpose of concealing their true identity is of the same degree of culpability of a person who possesses an ID card for the purposes of gaining employment - if not arguably more serious.

Therefore, in following Li Chang Li:

“...for the offence of possessing a forged ID card...”

Paragraph 40 of Li Chang Li,

“...even if the offender’s presence in Hong Kong is lawful, the starting point upon a plea of guilty should ordinary be 12 months’ imprisonment, so as to reflect the seriousness of the offence and serve deterrent purposes.”

I now turn to sentence you for the individual offences.

For Charge 1, you were trafficking in 118.90 grammes of ‘Ice’, and in following Tam Yi Chun, that falls in between 70 and 300 grammes, with a starting point of between 11 to 15 years’ imprisonment after trial. Had you been convicted after trial, I would have taken a starting point of 11 years and 9 months’ imprisonment. The prosecution accepts that a small quantity of drugs was used for your own consumption, and Ms See has mitigated that part of the drugs was for your own consumption, and given the past criminal records and the medical report from Lai Chi Kok Reception Centre soon after you were remanded, I accept that you were a drug dependent and part of these drugs were for your own consumption.

In following the case of HKSAR v Chow Chun Sang CACC 135/2011, as part of these drugs were for your own consumption, I consider a discount should be appropriate and I will discount 10 per cent from this basic starting point. In the circumstances, the sentence point shall now be reduced to one of 10 years and 6 months’ imprisonment. You have pleaded guilty and therefore the usual discount of one‑third should be applied and the resulting sentence for Charge 1 will be one of 7 years’ imprisonment.

On Charge 2, that was for an offence of possession of a dangerous drug, on that charge I would have taken a starting point of 12 months’ imprisonment giving you a full credit for your plea and reduce that to 8 months’ imprisonment.

On Charge 3, following Li Chang Li, you shall be sentenced to 12 months’ imprisonment.

Of charge 2, the sentence of 8 months’ imprisonment shall run concurrent to Charges 1 and 3; and on Charge 3, 6 months’ imprisonment shall run consecutive to Charge 1, making a total term of imprisonment of 7 years and 6 months’ imprisonment to which you shall serve - of course, the remaining 6 months of Charge 3 shall run concurrent to both charges.