HKSAR v. Wai Ping Sum

HCCC 166/2018
HCCC 167/2018
(Heard together)

[2020] HKCFI 108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 166 & 167 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant had pleaded guilty in the Magistrates’ Court in relation to HCCC 167/2018, where he had pleaded guilty to possession of a dangerous drug which is, namely, 0.08 gramme of a mixture containing heroin hydrochloride and 0.55 gramme of a crystalline solid containing 0.47 gramme of methamphetamine hydrochloride.

At the same time, he had pleaded not guilty to another charge of trafficking of dangerous drugs, and for that it was then committed to the High Court for trial, and that is HCCC 166/2018.

So that is the situation, he was committed to the High Court for trial for the trafficking count and for sentence for the possession of dangerous drug count in 167/2018.

The trial for HCCC 166/2018 was then listed for trial, to begin on 23 January this year. On 19 January this year, the defendant, through his legal representatives, informed the court that he was going to plead guilty to the trafficking charge in HCCC 166/2018. On the day fixed for the trial, 23 January, the defendant who was on court bail failed to appear in court. He was only intercepted on 30 April this year when and during a police stop-and-search operation. His status as a wanted person was revealed and he was then arrested and detained. And that gave rise to the 2nd count in HCCC 166/2018 for failing to surrender to custody without reasonable cause.

Now, the facts in relation to the drug counts are that, on 18 August 2017, defendant was seen by police officers and he was acting furtively and he placed a cigarette box, a mobile phone and a can of Coca-Cola onto a nearby phone box when he was at a fruit store in Shanghai Street. Upon interception, police officers found the drugs which is the subject matter of the trafficking charge in HCCC 166/2018 in the cigarette box.

Subsequently, when the defendant underwent a body search at the police station, the drugs which is the subject matter of HCCC 167/2018 were found in his underwear. The drugs in HCCC 167/2018 had an estimated retail value of just under $300. The drugs in the trafficking charge in HCCC 166/2018 had a street value at that time of around HK$11,370.

The defendant is aged 35 now. And I am told that he was living with his common law wife and two sons. The defendant has four previous convictions, three for possession of dangerous drugs and one for theft. As Mr Chan, on his behalf, pointed out there has been no trafficking in dangerous drugs conviction in his past. Mr Chan has given an account of why the defendant had indulged in trafficking of dangerous drugs is because of financial pressure, particularly, because of his eldest son had a suffering from pancreatic cancer and the medication is expensive. His second son is a student in the Technology University and his wife is suffering from breast cancer.

Mr Chan gave an explanation of why the defendant had failed to surrender to custody on 23 January because he said the defendant’s father was not well and the defendant’s father finally passed away on 30 January. He said the defendant being an only child felt responsible for the father and therefore did not attend court in order to stay by his father’s side. However, this does not explain why he did not surrender himself to the police after he has dealt with his father’s passing and was only apprehended in April when he was stopped and intercepted by police on a stop-and-search.

Now, in relation to HCCC 166/2018 for the trafficking charge, the Court of Appeal has laid down guidelines in the later case of Tam Yi Chun [2014] 3 HKLRD 691, that for trafficking in between 10 to 70 grammes of methamphetamine hydrochloride would merit a guideline sentence of 7 to 11 years’ starting point. For the amount of 27.8 grammes, I would adopt a starting point of 7½ years’ imprisonment. And as for the discount to be applied, I am grateful to Mr Cheung from the Department of Justice who has submitted the case of Ngo Van Nam [2016] 5 HKLRD 1 where the Court of Appeal laid down guidelines for discounts on pleas of guilty for between the earliest day, that is the pleas taken in the Magistrates’ Court, up to the trial date. And in particular, I would refer to the headnote paragraph 4 where the Court of Appeal said that:

“The range of discount to be afforded to a defendant who indicated to the Court or the prosecution that he intended to plead guilty after trial dates have been fixed but before the first day of trial, lay between the 25% discount to be afforded to a defendant who indicated that he wished to plead guilty up to and until dates were fixed for his trial by the Listing Judge and the 20% discount to be afforded to a defendant for a plea of guilty on the first day of trial. In determining the appropriate discount in those circumstances, the judge would have regard to the time at which the indication was given and to all other relevant circumstances.”

In this case, the defendant had failed to appear on the first day of trial to plead guilty. So in the circumstances, I have decided that an appropriate discount would be one of 20 per cent. So giving the defendant the 20 per cent discount for his plea today from the 7½ years’ starting point, would arrive at a sentence of 6 years’ imprisonment.

Now, as for the 2nd count of failure to surrender to custody, the sentences vary from 4 to 6 months’ imprisonment. As I have earlier said, the defendant had not surrendered himself to the police. In fact, he was only intercepted on a stop-and-search when his wanted status was revealed. I therefore have considered that under the circumstances, the defendant should be sentenced to 6 months’ imprisonment on this charge. And because of his guilty plea, he is entitled to a reduction to 4 months’ imprisonment. This 4 months’ imprisonment on the 2nd count will be consecutive to the 6 years’ imprisonment on the 1st count.

Now, in relation to HCCC 167/2018, for possession of dangerous drugs, I would consider that an appropriate starting point would be one of 6 months reduced to 4 months because of his plea. And in fact, as indicated above, the circumstances of this possession of dangerous drugs was, in fact, linked to the facts in HCCC 166/2018, and so in the circumstances, I agree with Mr Chan that it should be concurrent to the sentences he will serve for HCCC 166/2018.

So for both cases, the defendant will serve a total of 6 years and 4 months.