高等法院（刑事）Deputy High Court Judge S D’Almada Remedios6/6/2016
HCCC26/2016
A A
HCCC 26/2016
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 26 OF 2016
D ----------------- D
HKSAR
E v E
F
WU Chun-ming, Mandel F
------------------
G G
Before: Deputy High Court Judge S D’Almada Remedios
Date: 7 June 2016 at 10.22 am
H Present: Mr Peter J Cahill, on fiat, for HKSAR H
Ms Sabrina See, instructed by Tse Yuen Ting Wong,
I assigned by DLA, for the accused I
Offence: (1) Trafficking in a dangerous drug (販運危險藥物)
(2) Possession of dangerous drugs (管有危險藥物)
J J
(3) Possession of a forged document of identity (管有偽
造的簽證身分書)
K K
---------------------------------
Transcript of the Audio Recording
L of the Sentence in the above Case L
---------------------------------
M M
COURT: Defendant, you have pleaded guilty to three separate
offences before this court. Those three offences were
N committed on 12 January 2015 at Room 3411, Yat Man House, N
Ho Man Tin Estate.
O In the 1st charge, that was a charge of trafficking in a O
dangerous drug, contrary to section 4(1)(a) and (3) of the
P
Dangerous Drugs Ordinance, you admitted that you unlawfully P
trafficked in a 121.20 grammes of a crystalline solid
containing 118.90 grammes of methamphetamine hydrochloride.
Q Q
The 2nd charge is a charge of possession of a dangerous
drug, contrary to section 8(1)(a) and (2) of the Dangerous
R Drugs Ordinance. You admitted that you were in possession R
of 0.09 grammes of a solid containing cocaine, and 1 tablet
containing 9 milligrammes of nimetazepam.
S S
The 3rd charge is one of possession of a forged document of
T identity, contrary to section 42(2)(c)(i) and (4) of the T
Immigration Ordinance. You admitted that you had in your
possession a forged document, namely an acknowledgement of
U application for a Hong Kong Permanent Identity Card. U
CRT28/7.6.2016/TW/ag 1 HCCC 26/2016/Sentence
V V
A A
On 12 January 2015, police officers mounted an
anti-narcotics operation outside your premises. At about
B 7.16 pm you were seen to be leaving the premises. The B
police officers declared their identity and attempted to
intercept you outside your premises. However, you returned
C C
into your premises and shut the door. You were then
requested to open the door by a police officer informing
D you that he had a search warrant and authority to search D
the premises. However, the officer’s request was not
complied with so the police officers forcibly entered the
E flat. After a brief struggle with the officers, you were E
subdued.
F F
Upon entry to the premises, your girlfriend was inside.
The police officers conducted a search on you and found on
G you a packet of ‘Ice’, a tablet of nimetazepam and a forged G
acknowledgement of application for a Hong Kong ID card in
your possession. The search of the premises yielded other
H packages of drugs, packing equipment, an electronic scale, H
straw segments, plastic straws, tinfoil and a glass tube.
I I
Upon arrest and caution for the offence of trafficking, you
said that the drugs were for your own self-consumption.
J Under arrest and caution for the offence of possession of a J
forged document of identity, you said that the forged
document was prepared by Ah B.
K K
In a video-recorded interview, you said you had breached
your supervision order and hence you asked Ah B to make a
L forged identity document for you. You paid $1,000 to Ah B. L
In the same interview, you also said you were a habitual
M consumer of ‘Ice’. M
The street value of the drugs seized was $51,643.
N N
Defendant, you are 35 years of age and, I am told, are
divorced. You have three children with your ex-wife. Your
O mother is now taking care of those three children. At the O
time of arrest, you had a 1-year-old son with your
girlfriend who was found in the premises. Your girlfriend
P P
had since given up custody of your 1-year-old son, and as
you are not in a position to look after your son, you too
Q had to give up custody and now your son has been put up for Q
adoption. Ms See has informed me that you have asked her
to express this to me as you feel very sorry to lose your
R son. R
You have 14 previous convictions, 11 are related to drugs:
S S
8 of them are possession of dangerous drugs; and 3 of them
are for trafficking in dangerous drugs.
T T
The first offence for trafficking was in 2004 to which you
received a 2½ year sentence of imprisonment, and the other
U two trafficking charges was in 2008, to which you received U
CRT28/7.6.2016/TW/ag 2 HCCC 26/2016/Sentence
V V
A A
a sentence of 4 years’ imprisonment for those two charges.
Since then, that is some 8 years ago, you have had numerous
B related offences to possession of dangerous drugs. B
Ms See informs me that the record is obvious, that it can
C C
be seen that you are a drug dependent. In fact, a medical
report by the Correctional Services Department states that
D a urine specimen collected from you three days after your D
arrest and whilst in custody at the Lai Chi Kok Reception
Centre, the test showed a positive result to amphetamine.
E E
On this basis, her mitigation is based on the fact that
part of the drugs that you were trafficking in were for
F your own consumption. Although you were working at the F
time, you did not have enough money to support your habit
G and thus you would sell drugs to friends and make money to G
support your drug dependency. Ms See says that part of the
drugs was for your own consumption, but admits that the
H bulk of which were for trafficking. H
As for trafficking, the guidelines are clearly set down in
I the case of Tam Yi Chun, trafficking in ‘Ice’, and I shall I
follow those guidelines in sentencing you.
J J
In respect of Charge 3, Ms See said that she is unable to
find, despite her research, any cases of similar facts to
K the present case before me. Ms See has referred me to a K
case of HKSAR v Bodomo Marissa Flores HCMA 343/2005 where
the appellant there had provided false documents in
L relation to identity to the Immigration Department. In L
that case, the court took a starting point of 6 months’
M
imprisonment. M
I also referred Ms See to the case of Li Chang Li HCMA
N 935/2004. Ms See seeks to distinguish this case from the N
present on the basis that this case deals with those
persons present in Hong Kong with a forged ID card to seek
O employment. O
In my view, this case is more relevant than the case cited
P P
by Ms See, although the issue was upon those seeking
employment in Hong Kong with forged documents. I refer to
Q paragraph 35 where the court states that: Q
“General speaking, a document of identity cannot
R possibly be a plaything or a collector’s item. It R
follows that people who possess forged identity cards
or identity cards belonging to others must be doing so
S for the purpose of concealing their true identity so S
that they can work illegally in Hong Kong. This is so
T whether their presence in Hong Kong is lawful or not.” T
Paragraph 36 goes on to state:
U U
CRT28/7.6.2016/TW/ag 3 HCCC 26/2016/Sentence
V V
A A
“Under these circumstances, the degree of culpability
of a person who possesses a forged identity card or an
B identity card belonging to another has nothing to do B
with the lawfulness or otherwise of his presence in
Hong Kong. Of course, to remain in Hong Kong
C C
unlawfully is an offence in itself, for which the
offender will receive an appropriate sentence.”
D D
In this case, of course, the defendant is a Hong Kong
Permanent ID card holder. He is, therefore, lawfully
E present in Hong Kong. He possessed this forged document for E
the purpose of concealing his true identity. This was
because he had breached his supervision order from the Drug
F F
Addiction Treatment Centre as he failed to report upon
release and he had it in his possession so that his true
G identity could not be detected. G
I consider that a person who has a forged identity card for
H the purpose of concealing their true identity is of the same H
degree of culpability of a person who possesses an ID card
for the purposes of gaining employment - if not arguably
I I
more serious.
J Therefore, in following Li Chang Li: J
“...for the offence of possessing a forged ID card...”
K K
Paragraph 40 of Li Chang Li,
L “...even if the offender’s presence in Hong Kong is L
lawful, the starting point upon a plea of guilty
should ordinary be 12 months’ imprisonment, so as to
M reflect the seriousness of the offence and serve M
deterrent purposes.”
N N
I now turn to sentence you for the individual offences.
O For Charge 1, you were trafficking in 118.90 grammes of O
‘Ice’, and in following Tam Yi Chun, that falls in between
70 and 300 grammes, with a starting point of between 11 to
P 15 years’ imprisonment after trial. Had you been convicted P
after trial, I would have taken a starting point of 11 years
Q and 9 months’ imprisonment. The prosecution accepts that a Q
small quantity of drugs was used for your own consumption,
and Ms See has mitigated that part of the drugs was for your
R own consumption, and given the past criminal records and the R
medical report from Lai Chi Kok Reception Centre soon after
you were remanded, I accept that you were a drug dependent
S and part of these drugs were for your own consumption. S
In following the case of HKSAR v Chow Chun Sang CACC
T T
135/2011, as part of these drugs were for your own
consumption, I consider a discount should be appropriate and
U I will discount 10 per cent from this basic starting point. U
CRT28/7.6.2016/TW/ag 4 HCCC 26/2016/Sentence
V V
A A
In the circumstances, the sentence point shall now be
reduced to one of 10 years and 6 months’ imprisonment. You
B have pleaded guilty and therefore the usual discount of B
one-third should be applied and the resulting sentence for
Charge 1 will be one of 7 years’ imprisonment.
C C
On Charge 2, that was for an offence of possession of a
D dangerous drug, on that charge I would have taken a starting D
point of 12 months’ imprisonment giving you a full credit
for your plea and reduce that to 8 months’ imprisonment.
E E
On Charge 3, following Li Chang Li, you shall be sentenced
to 12 months’ imprisonment.
F F
Of charge 2, the sentence of 8 months’ imprisonment shall
G
run concurrent to Charges 1 and 3; and on Charge 3, 6 G
months’ imprisonment shall run consecutive to Charge 1,
making a total term of imprisonment of 7 years and 6 months’
H imprisonment to which you shall serve - of course, the H
remaining 6 months of Charge 3 shall run concurrent to both
charges.
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT28/7.6.2016/TW/ag 5 HCCC 26/2016/Sentence
V V
HCCC26/2016 HKSAR v. WU CHUN MING, MANDEL - LawHero
A A
HCCC 26/2016
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 26 OF 2016
D ----------------- D
HKSAR
E v E
F
WU Chun-ming, Mandel F
------------------
G G
Before: Deputy High Court Judge S D’Almada Remedios
Date: 7 June 2016 at 10.22 am
H Present: Mr Peter J Cahill, on fiat, for HKSAR H
Ms Sabrina See, instructed by Tse Yuen Ting Wong,
I assigned by DLA, for the accused I
Offence: (1) Trafficking in a dangerous drug (販運危險藥物)
(2) Possession of dangerous drugs (管有危險藥物)
J J
(3) Possession of a forged document of identity (管有偽
造的簽證身分書)
K K
---------------------------------
Transcript of the Audio Recording
L of the Sentence in the above Case L
---------------------------------
M M
COURT: Defendant, you have pleaded guilty to three separate
offences before this court. Those three offences were
N committed on 12 January 2015 at Room 3411, Yat Man House, N
Ho Man Tin Estate.
O In the 1st charge, that was a charge of trafficking in a O
dangerous drug, contrary to section 4(1)(a) and (3) of the
P
Dangerous Drugs Ordinance, you admitted that you unlawfully P
trafficked in a 121.20 grammes of a crystalline solid
containing 118.90 grammes of methamphetamine hydrochloride.
Q Q
The 2nd charge is a charge of possession of a dangerous
drug, contrary to section 8(1)(a) and (2) of the Dangerous
R Drugs Ordinance. You admitted that you were in possession R
of 0.09 grammes of a solid containing cocaine, and 1 tablet
containing 9 milligrammes of nimetazepam.
S S
The 3rd charge is one of possession of a forged document of
T identity, contrary to section 42(2)(c)(i) and (4) of the T
Immigration Ordinance. You admitted that you had in your
possession a forged document, namely an acknowledgement of
U application for a Hong Kong Permanent Identity Card. U
CRT28/7.6.2016/TW/ag 1 HCCC 26/2016/Sentence
V V
A A
On 12 January 2015, police officers mounted an
anti-narcotics operation outside your premises. At about
B 7.16 pm you were seen to be leaving the premises. The B
police officers declared their identity and attempted to
intercept you outside your premises. However, you returned
C C
into your premises and shut the door. You were then
requested to open the door by a police officer informing
D you that he had a search warrant and authority to search D
the premises. However, the officer’s request was not
complied with so the police officers forcibly entered the
E flat. After a brief struggle with the officers, you were E
subdued.
F F
Upon entry to the premises, your girlfriend was inside.
The police officers conducted a search on you and found on
G you a packet of ‘Ice’, a tablet of nimetazepam and a forged G
acknowledgement of application for a Hong Kong ID card in
your possession. The search of the premises yielded other
H packages of drugs, packing equipment, an electronic scale, H
straw segments, plastic straws, tinfoil and a glass tube.
I I
Upon arrest and caution for the offence of trafficking, you
said that the drugs were for your own self-consumption.
J Under arrest and caution for the offence of possession of a J
forged document of identity, you said that the forged
document was prepared by Ah B.
K K
In a video-recorded interview, you said you had breached
your supervision order and hence you asked Ah B to make a
L forged identity document for you. You paid $1,000 to Ah B. L
In the same interview, you also said you were a habitual
M consumer of ‘Ice’. M
The street value of the drugs seized was $51,643.
N N
Defendant, you are 35 years of age and, I am told, are
divorced. You have three children with your ex-wife. Your
O mother is now taking care of those three children. At the O
time of arrest, you had a 1-year-old son with your
girlfriend who was found in the premises. Your girlfriend
P P
had since given up custody of your 1-year-old son, and as
you are not in a position to look after your son, you too
Q had to give up custody and now your son has been put up for Q
adoption. Ms See has informed me that you have asked her
to express this to me as you feel very sorry to lose your
R son. R
You have 14 previous convictions, 11 are related to drugs:
S S
8 of them are possession of dangerous drugs; and 3 of them
are for trafficking in dangerous drugs.
T T
The first offence for trafficking was in 2004 to which you
received a 2½ year sentence of imprisonment, and the other
U two trafficking charges was in 2008, to which you received U
CRT28/7.6.2016/TW/ag 2 HCCC 26/2016/Sentence
V V
A A
a sentence of 4 years’ imprisonment for those two charges.
Since then, that is some 8 years ago, you have had numerous
B related offences to possession of dangerous drugs. B
Ms See informs me that the record is obvious, that it can
C C
be seen that you are a drug dependent. In fact, a medical
report by the Correctional Services Department states that
D a urine specimen collected from you three days after your D
arrest and whilst in custody at the Lai Chi Kok Reception
Centre, the test showed a positive result to amphetamine.
E E
On this basis, her mitigation is based on the fact that
part of the drugs that you were trafficking in were for
F your own consumption. Although you were working at the F
time, you did not have enough money to support your habit
G and thus you would sell drugs to friends and make money to G
support your drug dependency. Ms See says that part of the
drugs was for your own consumption, but admits that the
H bulk of which were for trafficking. H
As for trafficking, the guidelines are clearly set down in
I the case of Tam Yi Chun, trafficking in ‘Ice’, and I shall I
follow those guidelines in sentencing you.
J J
In respect of Charge 3, Ms See said that she is unable to
find, despite her research, any cases of similar facts to
K the present case before me. Ms See has referred me to a K
case of HKSAR v Bodomo Marissa Flores HCMA 343/2005 where
the appellant there had provided false documents in
L relation to identity to the Immigration Department. In L
that case, the court took a starting point of 6 months’
M
imprisonment. M
I also referred Ms See to the case of Li Chang Li HCMA
N 935/2004. Ms See seeks to distinguish this case from the N
present on the basis that this case deals with those
persons present in Hong Kong with a forged ID card to seek
O employment. O
In my view, this case is more relevant than the case cited
P P
by Ms See, although the issue was upon those seeking
employment in Hong Kong with forged documents. I refer to
Q paragraph 35 where the court states that: Q
“General speaking, a document of identity cannot
R possibly be a plaything or a collector’s item. It R
follows that people who possess forged identity cards
or identity cards belonging to others must be doing so
S for the purpose of concealing their true identity so S
that they can work illegally in Hong Kong. This is so
T whether their presence in Hong Kong is lawful or not.” T
Paragraph 36 goes on to state:
U U
CRT28/7.6.2016/TW/ag 3 HCCC 26/2016/Sentence
V V
A A
“Under these circumstances, the degree of culpability
of a person who possesses a forged identity card or an
B identity card belonging to another has nothing to do B
with the lawfulness or otherwise of his presence in
Hong Kong. Of course, to remain in Hong Kong
C C
unlawfully is an offence in itself, for which the
offender will receive an appropriate sentence.”
D D
In this case, of course, the defendant is a Hong Kong
Permanent ID card holder. He is, therefore, lawfully
E present in Hong Kong. He possessed this forged document for E
the purpose of concealing his true identity. This was
because he had breached his supervision order from the Drug
F F
Addiction Treatment Centre as he failed to report upon
release and he had it in his possession so that his true
G identity could not be detected. G
I consider that a person who has a forged identity card for
H the purpose of concealing their true identity is of the same H
degree of culpability of a person who possesses an ID card
for the purposes of gaining employment - if not arguably
I I
more serious.
J Therefore, in following Li Chang Li: J
“...for the offence of possessing a forged ID card...”
K K
Paragraph 40 of Li Chang Li,
L “...even if the offender’s presence in Hong Kong is L
lawful, the starting point upon a plea of guilty
should ordinary be 12 months’ imprisonment, so as to
M reflect the seriousness of the offence and serve M
deterrent purposes.”
N N
I now turn to sentence you for the individual offences.
O For Charge 1, you were trafficking in 118.90 grammes of O
‘Ice’, and in following Tam Yi Chun, that falls in between
70 and 300 grammes, with a starting point of between 11 to
P 15 years’ imprisonment after trial. Had you been convicted P
after trial, I would have taken a starting point of 11 years
Q and 9 months’ imprisonment. The prosecution accepts that a Q
small quantity of drugs was used for your own consumption,
and Ms See has mitigated that part of the drugs was for your
R own consumption, and given the past criminal records and the R
medical report from Lai Chi Kok Reception Centre soon after
you were remanded, I accept that you were a drug dependent
S and part of these drugs were for your own consumption. S
In following the case of HKSAR v Chow Chun Sang CACC
T T
135/2011, as part of these drugs were for your own
consumption, I consider a discount should be appropriate and
U I will discount 10 per cent from this basic starting point. U
CRT28/7.6.2016/TW/ag 4 HCCC 26/2016/Sentence
V V
A A
In the circumstances, the sentence point shall now be
reduced to one of 10 years and 6 months’ imprisonment. You
B have pleaded guilty and therefore the usual discount of B
one-third should be applied and the resulting sentence for
Charge 1 will be one of 7 years’ imprisonment.
C C
On Charge 2, that was for an offence of possession of a
D dangerous drug, on that charge I would have taken a starting D
point of 12 months’ imprisonment giving you a full credit
for your plea and reduce that to 8 months’ imprisonment.
E E
On Charge 3, following Li Chang Li, you shall be sentenced
to 12 months’ imprisonment.
F F
Of charge 2, the sentence of 8 months’ imprisonment shall
G
run concurrent to Charges 1 and 3; and on Charge 3, 6 G
months’ imprisonment shall run consecutive to Charge 1,
making a total term of imprisonment of 7 years and 6 months’
H imprisonment to which you shall serve - of course, the H
remaining 6 months of Charge 3 shall run concurrent to both
charges.
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT28/7.6.2016/TW/ag 5 HCCC 26/2016/Sentence
V V