HKSAR v. Chau Yau an

HCCC 256/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 256 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant has been convicted on his own plea of one charge of trafficking in a dangerous drug and one charge of trafficking in dangerous drugs.

The Particulars of Offence in respect of Charge 1 provide that on 24 October 2014 at Kwong Lee Road, Cheung Sha Wan, Kowloon, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 18 grammes of a mixture containing 12.1 grammes of heroin hydrochloride.

The Particulars of Offence in respect of Charge 2 provide that on 24 October 2014 at Room 1, 6th Floor, Yee Wa Building, No 411 Un Chau Street, Cheung Sha Wan, Kowloon in Hong Kong, the defendant unlawfully trafficked in dangerous drugs, namely 79.39 grammes of a mixture containing 54.67 grammes of heroin hydrochloride and 480 tablets containing 6.71 grammes of midazolam.

The Summary of Facts admitted by the defendant provides that at around 0914 hours of 24 October 2014, a team of Customs officers was on anti-narcotics duty in the Cheung Sha Wan district. PW1 observed the defendant walking along Kwong Lee Road. PW1 and PW2 intercepted the defendant and revealed their identity. They requested a search. PW1 conducted the search and found a plastic zip-lock bag containing 30 red packets of suspected heroin hydrochloride and another plastic zip-lock bag containing 40 white packets of suspected heroin hydrochloride inside the defendant’s right back trousers pocket. A sum of $3,830, a mobile phone, and two SIM cards were also found in the defendant’s possession.PW1 cautioned and arrested the defendant. Under caution, the defendant stated inter alia that:

(1) The packets contained heroin; and

(2) The packets of heroin were for sale to others.

PW1 also found a set of keys from the defendant’s trousers pocket. When questioned, the defendant stated inter alia that:

(1) The keys belong to him.

(2) They were used for gaining access to his premises.

(3) He was living in Room 1, 6th Floor, Yee Wa Building, No 411 Un Chau Street, Cheung Sha Wan.

PW1, PW2, and PW3 then escorted the defendant to the stated address for a house search. PW1 used the keys to open the main door of Floor 6, Yee Wa Building, NO 411 Un Chau Street, Cheung Sha Wan and the door of Room 1. In the defendant’s presence, PW1 to PW3 conducted a search of the room. Inside the room, the dangerous drugs, the subject matter of the Charge 2 were found, as well as an electronic scale, three lighters, two scissors, one bundle of unused zip-lock bags, a plastic pipe, one bundle of aluminium foil, two sets of red plastic sheet with container, and one set of white plastic sheet with container.

PW1 then cautioned the defendant again. Under caution, the defendant stated inter alia that:

(1) All the substances inside the plastic box belonged to him.

(2) The heroin was contained inside white and red packets.

(3) The blue pills were Lam Ching Ling (the common name of Midazolam).

(4) The packet containing the white heroin granules, Exhibit P21, were for his own consumption and the packet containing heroin powder, Exhibit P24, was the leftovers after the last consumption.

(5) The packaging paraphernalia were for packing the heroin which would be sold to people.

The defendant was later interviewed under caution on video in which he stated, inter alia, the following:

(1) He was intercepted by Customs officer on Kwong Lee Road and the drugs were found inside his pocket.

(2) The drugs found on him and inside the premises (rented by him) were for distribution after packing.

(3) He was responsible for dividing and packing the drugs.

(4) He was contacted by some unknown person for picking up the drugs at locations near his home, near to the rubbish bin or planter.

(5) He would bring the drugs back to the premises and conduct the packing job.

(6) The quantity of the drugs were around one ounce of heroin each time.

(7) After packing, he would usually receive unknown phone calls the following day, instructing him to leave the packed drugs at some specified locations.

(8) He did not have the contact details of the supplier of the drugs.

(9) He would receive about HKD$1,000 as reward.

(10) He would pick up his reward money at some places as instructed.

(11) The $3,830 seized from him was his CSSA allowance.

The drug exhibits were examined by the Government Chemist and found to consist of the dangerous drugs, the subject matter of respectively Charge 1 and Charge 2

Investigations revealed that the defendant was the sub-tenant of the premises. He rented the premises from 3 March 2014 for a term of 2 years, at the rent of $2,500 per month.

The street value of the dangerous drugs was estimated at $103,704.78.

In the Summary of Facts, the defendant expressly admitted that he trafficked in the dangerous drugs particularised in the two charges.

By way of personal background, the defendant is 54 years of age. The defendant has been separated from his wife since 2005. The defendant has completed education up to primary five level. Since leaving school, the defendant had worked as a baker and a decoration worker. He was unemployed at the time of his arrest.

The defendant has 3 previous criminal convictions, none of which is drug related.

By way of mitigation, Mr Kevin Chan, on behalf of the defendant, realistically accepts that the only mitigating factor in this case is the defendant’s guilty plea.

Moreover, although it had been stated by the defendant under caution that part of the drugs involved in this case were for his own consumption. Mr Chan informed the court that the defendant no longer relies on that assertion by way of mitigation.

In the present case, the narcotic involved in Charge 1 is 12.1 grammes of heroin. The narcotics involved in Charge 2 are 54.67 grammes of heroin and 480 tablets containing 6.71 grammes of midazolam.

Having regard to the proximity in time and place in respect of the commission of the 2 offences, clearly they fall to be considered together. I should first consider the overall sentence to be imposed, based on the total quantity of dangerous drugs involved in the two charges (ie 66.77 grammes of heroin and 6.71 grammes of midazolam).

This case involves the defendant trafficking in two kinds of dangerous drugs which were kept in separate packets. In fairness to the defendant when considering the global starting point, I intend to adopt the “combined” approach whereby the court looks at the overall quantity of drugs rather than individual parcels. In taking a global view, the court is then able to assess, realistically and fairly, the appropriate sentence.

The methodology of this “combined” approach is first to calculate the applicable sentence for the most serious drug, which is “heroin” in the present case, and then adjust the sentence upwards to take into account significant quantities of the other drug.

In the present case, I take “heroin” as the base of the sentence. The total quantity of heroin seized is 66.77 grammes. In R v Lau Tak Ming[1990]2 HKLR 370, for trafficking in between 50 grammes and 200 grammes of heroin, it was held by the Court of Appeal that 8 to 12 years’ imprisonment was the proper sentence to be imposed after trial. Following the guidelines in the Lau Tak Ming case, I consider that the appropriate starting point of for trafficking in 66.77 grammes of heroin is 8 years and 5 months’ imprisonment.

The quantity of midazolam trafficked in the present case is 6.71 grammes. In HKSAR v Choi Tung Cheung, HCMA 759/2005 (Judgment dated 29 November 2005), it was held that the tariffs for trafficking in midazolam should be the same as for trafficking in methaqualone.

As for methaqualone, it was held in Attorney General v Chan Chi Man [1987] HKLR 221 that for trafficking in under 500 grammes of the drug, the sentence can be one as the court thinks fit; and for trafficking in between 500 and 1000 grammes of the drug, the sentence after trial should be 6 to 12 months’ imprisonment.

Having regard to the authorities cited above, I would adjust the global starting point upwards by 1 month to take into account the quantity of midazolam in Charge 2.

In other words, I consider that the appropriate overall starting point for sentence in the present case should be 8 years and 6 months’ imprisonment.

I have tested this overall starting point using the so-called “absurdity test”. If the quantity of midazolam had, for argument’s sake, been a further quantity of heroin weighing 6.71 grammes, the overall starting point for 73.48 grammes of heroin would have been around 8 years and 8 months’ imprisonment.

In coming to the view that 8 years and 6 months’ imprisonment after trial is indeed the appropriate overall starting point for the present case, I have taking into account that trafficking in more than one kind of drug should be considered an aggravating feature.

I should give the defendant the full one-third discount for his guilty plea from the overall starting point of 8 years and 6 months’ imprisonment. This results in the total sentence of 5 years and 8 months’ imprisonment.

Defendant can you stand up?

In order to achieve an appropriate totality of sentence of 5 years and 8 months’ imprisonment, I order as follows:

(1) In respect of Charge 1, for the quantity of narcotic involved, I adopt the starting point of 5 years and 1 month’s imprisonment. After affording the defendant a one-third discount, the sentence on Charge 1 is 3 years and 4 months’ imprisonment.

(2) In respect of Charge 2, for the quantities of narcotics involved, I adopt the starting point of 8 years and 2 months’ imprisonment. After affording the defendant a one-third discount, the sentence on Charge 2 is 5 years and 5 months’ imprisonment.

(3) Three months of the sentence on Charge 1 is to run consecutively to the 5 years and 5 months’ sentence on Charge 2. This results in a total sentence of 5 years and 8 months’ imprisonment.