HKSAR v. Soo Cheuk Wing

HCCC 329/2019

[2020] HKCFI 737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 329 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Defendant, you pleaded guilty to a charge of trafficking in dangerous drugs before a magistrate at the Eastern Magistracy on 30 September 2019. As a result of your plea of guilty, you have been committed to the Court of First Instance for sentence.

You admitted that on 9 December 2018, at No 72 Bute Street, Mong Kok in Kowloon, you unlawfully trafficked in 26.8 grammes of a crystalline solid containing 26.8 grammes of methamphetamine hydrochloride and 27.8 grammes of a solid containing 23.2 grammes of heroin hydrochloride.

As to the facts of the case, on 9 December 2018, at around 6.40 pm, police officers spotted you acting furtively. At that time, you were walking with an awkward posture, perspiring even though the temperature was 16 degrees, and were looking around nervously. The officers then intercepted you and searched you at No 72 Bute Street. During the search, one plastic bag containing the methamphetamine hydrochloride was found and one plastic bag containing the heroin hydrochloride was found in an envelope stored near your abdomen between your underwear and jeans that you were wearing. You were then arrested and cautioned and stated that the heroin and ‘Ice’ were for your own consumption. At the time of your arrest, you were in possession of $15.

The estimated street value of the heroin and the ‘Ice’ were accumulatively $38,085.

Defendant, you are now 34 years of age. You will be 35 at the end of this month. You are single, have six previous convictions. One related to drugs which was for possession of dangerous drugs in 2015 for which you were sentenced to the drug addiction treatment centre. Ms Julianna Chow, your counsel, has informed me that you are a drug dependent and as can be seen from the record, you have been drug-dependent for quite a long time. After your discharge from prison in 2016 for an unrelated offence, you relapsed into drugs as you did not see any light, in her words, “at the end of the tunnel”.

As can be seen in cases like yourself, persons who are drug-dependent have to traffic to provide for their dependency. It is alleged that you were a transportation worker earning approximately $18,000 a month and you were consuming drugs worth about $1,000 a day. As mentioned earlier to Ms Chow, it is alleged by you that you would consume 1.75 grammes per day at the highest. However, in your antecedent which is not challenged, it says you would consume around 0.5 grammes of ‘Ice’ per day.

I do not accept that you would consume 1.75 grammes per day in view of the quantity. And if you did consume a high quantity, I also do not accept with that high quantity you would be able to work. Nevertheless, Ms Chow confirms with me that you are not putting forward mitigation in respect of any of the drugs for your own consumption, that a substantial quantity was for your own consumption or a significant proportion was for your own consumption. I accept you are a drug dependent, but I only accept that an unquantifiable small amount of the drugs were for your own consumption.

In this case, defendant, you have pleaded guilty at the first opportunity, that is your strongest and greatest mitigating factor to which you shall be awarded the full discount of one-third.

Defendant, you were trafficking in two different types of drugs. That was ‘Ice’ and heroin. I shall take the combined approach when sentencing you and shall be using the conversion test to convert the heroin into ‘Ice’ so that a single tariff for one drug would be used to take the quantity of drugs involved, that is, I will be applying the conversion test as is enunciated in HKSAR v Chan Yuk Leong CACC 318/2013.

I take ‘Ice’ as the base for conversion, so I will be converting the amount of heroin into ‘Ice’. You had in your possession for trafficking 23.2 grammes of heroin. Had you been convicted after trial, an appropriate starting point would be one of 5 years and 9 months’ imprisonment. A similar sentence to that which will be imposed for trafficking in ‘Ice’ would be equivalent to that of 7 grammes of ‘Ice’. Therefore, the converted amount of heroin to ‘Ice’ is 7 grammes. The one packet of ‘Ice’ you had trafficked in was 26.8 grammes, so I add the 7 grammes to the 26.8 grammes, which arrives at a total of 33.8 grammes of ‘Ice’. That is the amount to which I take as the starting point to sentence you.

Defendant, had you been convicted after trial for trafficking in 33.8 grammes of ‘Ice’, following the leading case of Tam Yi Chun, that would be a starting point of 8 years and 6 months’ imprisonment. Giving you the full one-third discount for your early plea of guilty, that term should be reduced to 5 years and 8 months’ imprisonment to which you shall be so sentenced.