HKSAR v. Shum Siu Yip, Sam
Read the full judgment text of DCCC 214/2022 on BabelCite. This District Court judgment was delivered on 12 May 2023.
1. The defendant is convicted of a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on his own plea and agreement to Summary of Facts.
Cites 3 cases
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DCCC 214/2022 [2023] HKDC 876 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 214 OF 2022 -------------------------------------
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----------------------------------------- REASONS FOR SENTENCE ----------------------------------------- 1.The defendant is convicted of a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on his own plea and agreement to Summary of Facts. Facts 2.At around 1:06 am on 27 November 2021, police officers noticed the defendant who turned around hastily as he noticed the officers. Upon interception and a body search of the defendant, 2 transparent resealable plastic bags containing white solids were found inside his cross-body bag. The defendant was arrested for possession of a dangerous drug and under caution, he admitted that the “white powder” were for his own consumption. 3.Government chemist confirmed that the contents of the drugs in question was 28.0 grammes of a mixture containing 23.4 grammes of heroin hydrochloride. The estimated street value of the drugs seized was HK$33,292. 4.Cash of HK$152 and a mobile phone with 2 SIM cards were found to be in the defendant’s possession at the time of his arrest. 5.In a video-recorded interview, the defendant admitted that he was a renovation worker earning about HK$25,000 to HK$30,000 per month, and he bought the drugs for HK$28,000, which was enough for his 2 to 3 months’ consumption. 6.At all material times, he was in possession of the drugs seized for the purpose of unlawful trafficking. Criminal Record 7.The defendant has 5 previous criminal records involving convictions of 5 charges, including one similar conviction in year 2002 for which he was sentenced to 6 years and 8 months’ imprisonment. Mitigation 8.The defendant was aged 40 at the time of the offence. He was divorced in year 2016 and his daughters are now being looked after by his ex-wife. The defendant used to be a renovation worker on casual basis before his arrest and earned about HK$25,000 to HK$30,000 per month. 9.Defence counsel submitted that the defendant became addicted to ICE when he was about 20 years old and he kicked the habit later. About 1 year before his arrest, he began to pick up ICE again in order to cure his insomnia and to relieve his pressure from work. It was submitted that about 2 to 3 weeks before his arrest, the defendant began to consume heroin as well and he took both ICE and heroin on and off at the same time. Defence counsel said on the day of offence, the defendant spent about HK$28,000 for buying 2 bags of drugs. 10.She conceded that following the sentencing guideline for trafficking heroin in the case of R v Lau Tak Ming [1990] 2 HKLR 370 for trafficking 23.4 grammes of heroin, the sentencing starting point would be 72 months’ imprisonment. She referred this court to the cases of HKSAR v Cheung Wai Man, CACC 258/2017, and HKSAR v Chow Chun Sang, CACC 135/2011. 11.She asked for a further sentencing discount by reason that some of the drugs would be consumed by the defendant. In support of this contention, she said that, under caution, the defendant repeatedly informed the police that the drugs were for his own consumption. There were no other small resealable plastic bags for further distribution on his body. Urine test report did not support the defendant’s alleged heroin addiction. Defence counsel said that the defendant only took the heroin with ICE on and off. 12.It is said that the defendant is now deeply remorseful and therefore indicated his guilty plea at the earliest opportunity. Defence counsel asked this court for a full one-third sentencing discount by reason of the defendant’s guilty plea. Discussion 13.Before sentencing, this court has carefully considered mitigation by defence counsel. 14.The maximum sentence on conviction of this charge upon indictment is a fine of HK$5 million and imprisonment for life. 15.For trafficking 23.4 grammes of heroin as in this case, following the guideline in the case of Lau Tak Ming and as conceded by the defence counsel, the sentencing starting point is 72 months’ imprisonment. 16.This offence is a very serious offence and personal background is seldom a mitigating factor. The most valid mitigating factor in this case is that of the defendant’s guilty plea, for which he is entitled to full one-third sentencing discount. 17.Urine test performed on the defendant does not support that he is a heroin user. Defence counsel submitted that on and off the defendant would consume heroin, but the evidence showed that the defendant did not in the very near period prior to his arrest consumed heroin. Therefore, in the views of this court, he is not a habitual and addicted heroin user. He might have from time to time consumed heroin, but that does not justify the court exercising its discretion to afford him further sentencing discount by reason of his possible consumption on a small part of the heroin seized. 18.The defendant is therefore sentenced to 48 months’ imprisonment.
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