HKSAR v. Ho Chiu Man

KDCC440/1985

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

(KOWLOON) DISTRICT COURT CRIMINAL CASE NO. 440 OF 1985

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Reasons for Sentence

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Background

1.The defendant was charged with the repealed section 7 of Cap. 134, which was commonly called as “DDUT”.  That section was repealed in 1992, and the current trafficking offence section is section 4. 

2.Originally the defendant would be tried in October 1985.  He was on bail at that time but absconded.  After some 25 years the defendant was repatriated back to Hong Kong in July 2010, after serving a lengthy sentence in Thailand.

3.The prosecution applied to make a minor amendment as to quantity of the salts of esters of morphine (SEM) which should be 16.19 grammes.  Counsel for the defence raised no objection and leave was granted. 

4.The defendant pleaded guilty to the amended charge. 

The prosecution case

5.At about 4:39 pm on 10 July 1985, a party of police officers spotted the defendant in the vicinity of Pak Ho Restaurant in Prince Edward Road.  The defendant was intercepted and a body search was conducted.  The police found two parcels wrapped in picture book magazine papers.  Each parcel contained five plastic bags of white powder, making it a total of 10.  Cash in the sum of $2,900 was found on the defendant.

6.Under caution, the defendant said, “Give me a chance.  I only carry the goods for somebody else to earn some money.” Chemical analysis confirmed that the dangerous drugs in question contained a mixture of 83.45 grammes containing 16.19 grammes of SEM. 

Mitigation

7.The defendant had a clear record in Hong Kong when he was arrested in 1985.  He is now about 51 years old.  The defendant is the eldest son of the family.  At the time of his arrest he worked as a part-time worker in the garment factory.  His father died a few years ago. Today his two sisters and his sister-in-law are in court to support him. 

8.When the defendant committed the present offence, he was 25, and now he is over 50.  He claimed that he would earn a few hundred dollars from this transaction.  With the assistance from others, the defendant left Hong Kong for Thailand by unlawful means in 1985.  No reason was given why Thailand was chosen. 

9.However, the defendant committed drugs offences in Thailand involving, he claimed, slightly over 1 kg of drugs.  That resulted in the defendant being imprisoned for life in April 1987.  Because of the pardon by the Thai Monarchy, the defendant was released from the Thai prison after serving some 23 years there, and was repatriated back to Hong Kong. 

10.It was submitted that the defendant had made attempts to apply to transfer to Hong Kong to serve his prison term before 1997.  However, because of the change of sovereignty and the lack of confidence on the “new regime” in Hong Kong, the defendant was only repatriated back to Hong Kong last year.  It was claimed that had the defendant been able to transfer back to Hong Kong to serve his prison term, the sentencing judge for the present case would consider the totality principle and hence reduce his prison term for the present offence.  Defence counsel was reminded that this would be a discretionary power of the sentencing judge and would not be granted as a matter of course. 

11.The defendant was pardoned for his crime in Thailand, and hence, apart from this offence, the defendant could be regarded as a free man.  The defendant has been remanded in custody for nearly six months in Hong Kong.  The defendant also tendered his mitigation letter, saying that he was remorseful and would like to be a filial son to take care of his mother, who is old and sick. 

Sentence

12.The defendant was lucky that he was not sentenced to death penalty in countries where harsh and tough punishment is imposed on drug traffickers.  He is lucky that the absconding offence under section 9L of CPO only started to operate since September 1995, otherwise he would be imprisoned a longer period for absconding from this jurisdiction.

13.The defendant is also lucky in this case as I am bound to sentence the defendant based on the old sentencing authority. The present offence occurred before the defendant committed an even more serious drugs offence in Thailand.  Had he not absconded to Thailand, the defendant might not be imprisoned for life.  He left Hong Kong by unlawful means, and the whole saga was a creation of his own misdeeds.  No one can be blamed but the defendant himself. 

14.In my view, it would be a mockery of the criminal justice system if the defendant can have the best of both worlds.  He committed a more serious crime and expected that he could have some discount in sentence for another offence relying on the totality principle.

15.I reject this line of submission or mitigation made by the defence.  As this case occurred in 1985, I have to rely on the old sentencing authority, and the leading case is R v Chan Chi Ming [1979] HKLR 491.  For offences involving under 30 grammes of SEM, the sentence will be from 2 to 3 years.  If the new and current sentencing tariff was adopted, the sentencing range would be from 5 to 8 years. 

16.As I have to rely on the old sentencing authority, I would adopt a starting point of 2½ years.  It is a wise move for the defendant to plead guilty to the charge as he would enjoy one-third discount in sentence. 

17.With his plea, I sentence the defendant to 20 months' imprisonment.