HKSAR v. So Wai

HCCC 176/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 176 OF 2017

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

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COURT:

The defendant, So Wai, pleaded guilty before me to one count of trafficking in a dangerous drug. The offence took place on 4 October 2016 and it concerned 54.8 grammes of a mixture containing 41 grammes of heroin hydrochloride.

In the early hours on the day in question, police officers were on anti-crime patrol in Mong Kok. At about 1.50 am, the defendant was intercepted outside ground floor of No 327-329 Reclamation Street. The defendant was searched. Four transparent resealable plastic bags containing suspected dangerous drugs, Exhibit E1, wrapped in newspaper were found inside the defendant’s shirt under his left armpit.

E1 was later confirmed to be four plastic bags containing a total of 54.8 grammes of a mixture containing 41 grammes of heroin hydrochloride, two mobile phones, one blue notepad containing writings therein, one Bank of China savings account passbook and cash $23,754.30 were also found on the defendant.

The defendant was arrested. Under caution, he said the ‘sei jai’ were for his own consumption.

In the subsequent first video-recorded interview, the defendant admitted inter alia that:

(a) E1 is heroin.

(b) He purchased E1 from a male named Ah Ming for $30,000. He made a transfer of $30,000 to Ah Ming’s Jockey Club account but he had forgotten Ah Ming’s account details.

(c) After the transfer, Ah Ming told him to collect E1 in a park at Reclamation Street/Shan Tung Street. He had just collected E1 when he was arrested.

(d) He is unemployed and relies on CSSA subsidy of $3,600 per month.

(e) He does not have a usual place of residence, sometimes he sleeps on the street and sometimes in a motel.

(f) He held E1 under his armpit because this way he did not need to use a bag.

(g) The blue notebook belonged to him but he did not explain the writings therein.

(h) The $23,754.30 cash belonged to him and he won it by playing gambling games in an arcade centre. He bet $1,000 every time he played the gambling machines.

(i) The Bank of China savings account passbook belonged to him and showed his monthly withdrawals.

(j) He had used up all of his $3,600 CSSA funds for the month.

(k) He had been a drug addict for more than 10 years. He consumed about $100 to $200 worth of drugs every eight hours by injection.

(l) He used the pink mobile phone found on him to contact Ah Ming but he was not sure if Ah Ming’s number was recorded therein.

In his second video-recorded interview, the defendant stated that the blue notebook was given to him by a friend and the notes therein were not his. He could not remember the telephone number of the pink mobile phone.

The estimated retail value of the subject dangerous drug at the time of seizure was $32,718.

The defendant admits and accepts that he was trafficking in the dangerous drugs seized in the case.

The antecedents statement of the defendant shows that the defendant is now 65 years old. He was born in Hong Kong and he had received Primary 3 education. He was unemployed at the time of his arrest.

The criminal record of the defendant shows that the defendant had a total of 33 previous convictions recorded against him, arising out of 26 matters. His first conviction was 1972 and his last conviction was in 2009. He has 17 dangerous drugs-related convictions. He had been convicted on four previous occasions for the offence of trafficking in dangerous drugs. He had one previous conviction for possession of dangerous drugs for the purpose of unlawful trafficking and one for assisting in the management of a divan.

Mr Chan told me in mitigation that the defendant is now 65 years old. He was unemployed at the time of the offence and he had no usual place of residence. He received $3,600 from CSSA. The parents of the defendant had passed away a long time ago. The defendant has one elder brother and one younger sister, both living in Macau.

Mr Chan told me that the parents of the defendant brought the defendant to live in Macau when he was a child. The defendant returned to Hong Kong when he was 14. He started to work as a goldsmith apprentice and he stayed in the trade for almost 20 years. But he was unable to maintain a stable employment due to the fact that, over the years, he was going in and out of prison. After the defendant’s retirement, he had to rely on CSSA for his living.

In fact, when the defendant was 25 years old, he became a drug addict under the influence of some undesirable peers. He was first convicted of possession of dangerous drugs in 1978. For the addiction of the defendant, Mr Chan told me the defendant had to take heroin a few times a day.

The main income of the defendant was the $3,600 CSSA payment he received each month. As the defendant needed money for his drug addiction, the defendant was introduced to a drug trafficker, Ah Ming, by a friend. The defendant was eager to earn some money to sustain his drug addiction and he agreed to help Ah Ming to deliver the drugs in question for a reward of $3,000. The defendant picked up the drugs in question in a park at Reclamation Street shortly before his arrest. He was intercepted by the police and the drugs were found.

Mr Chan submitted that, as a sign of remorse, the defendant pleaded guilty at the earliest stage. The guilty plea of the defendant deserves a full discount of one-third reduction. Mr Chan submits that given the quantity of heroin involved in this case and applying the tariffs as set down by the Court of Appeal, the starting point should be in the range of 5 to 8 years’ imprisonment.

In sentencing the defendant, I have borne in mind the nature of the drugs and also the quantity of the drugs involved. As said, this case concerned 41 grammes of heroin hydrochloride. Applying the tariffs as set down by the Court of Appeal in the case Lau Tak Ming [1990] 2 HKLR 371, in my judgment, a starting point of 7 years’ imprisonment is appropriate.

The defendant has an appalling criminal record. He has accumulated a total of 33 previous convictions arising out of 26 matters over the years. As far as trafficking offences is concerned, the defendant is a recidivist. The defendant had four previous convictions for trafficking in dangerous drugs. He had one previous conviction for possession of dangerous drugs for the purpose of unlawful trafficking and one for assisting in the management of a divan.

It is obvious that the past sentences failed to deter or stop the defendant from engaging in trafficking activities. The fact that the defendant is a recidivist calls for an upward adjustment. In my judgment, an upward adjustment of 9 months’ imprisonment is called for and it would bring the starting point up to 7 years and 9 months’ imprisonment.

The defendant is entitled to the full one-third reduction for his guilty plea. That will bring his sentence down to 62 months’ imprisonment. Apart from the guilty plea of the defendant, there is no other mitigating factor which can further reduce the sentence.

For the reasons given, I sentence the defendant to 62 months’ imprisonment.