HKSAR v. Yau Siu Fun

DCCC 795/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 795 OF 2015

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Reasons for Sentence

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1.The defendant pleaded guilty to two charges of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

Outline of facts

Charge 1

2.Police officers spotted the defendant acting furtively and walking quickly while carrying a brown handbag. They stopped her outside Sau Mau Ping Good Neighbour Family Centre in Sau Mau Ping to make enquiries. The defendant said she lived nearby and that she was going home. Upon search, a plastic bag wrapped inside a tissue paper was found in a zipped compartment of the defendant’s handbag. The substance inside the plastic bag was later confirmed to be 27.30g of a mixture containing 18.30g of heroin hydrochloride (a salt of heroin).

3.The defendant was arrested and said under caution that the “white powder” was for self-consumption as well as to sell to friends so that she could make some money.

4.The estimated street value of the drugs is around $18,591.

Charge 2

5.The defendant was then brought back to her home at Sau Ching House in Sau Mau Ping Estate. Upon search there, 25 packets of dangerous drugs, an electronic scale and a transparent plastic bag containing another 13 transparent resealable plastic bags were found inside a lipstick box.

6.Under caution, the defendant made the same assertion as before, that the drugs were for her self-consumption as well as to sell to her friends. At a later video recorded interview, the defendant claimed that she would sell left-over drugs to her friends at $110 to $120 per packet by leaving them at the flower bed of a park. Upon the defendant receiving payment, the buyer would be directed to the location for collection of the drugs. 

7.The defendant had two mobile phones and around $950 cash on her at the time of arrest.

8.The contents of the 25 packets were later confirmed to be 6.77g of a mixture containing 5.16g of heroin hydrochloride., with a total estimated street value of around $4,611.

Previous convictions

9.The defendant has 14 previous convictions, with 2 being for trafficking in dangerous drugs. Her latest conviction was in 2011 when she was sentenced for theft.

Mitigation

10.The defendant is 55 years old and lives with her elder brother at the address where the dangerous drugs in charge 2 were found. The defendant was born in Hong Kong and her father died when she was still very young. The defendant was educated up to primary 5 level. Her mother shouldered the responsibility of providing for their family of 4 sons and 2 daughters. The defendant’s mother passed away about 10 years ago, which caused the defendant to return to drugs. The defendant claimed that she has low self-esteem and resorted to drugs to alleviate her boredom and to compensate for the fact that she had no one to confide in. The only friends she had were drug addicts.

11.It is the defendant’s case that 5g of the mixture in charge 1 and 9 packets of the drugs found in her home in charge 2 were for her self-consumption. The rest of the drugs were to sell to her friends.

Sentencing tariff

12.According to the sentencing tariffs as set out by the Court of Appeal in the case of R v Lau Tak Ming, CACC 230/1989, trafficking in 18.30g of heroin hydrochloride would place the defendant in the 5 to 8 years imprisonment band; and 5.16g  in the 2 to 5 years imprisonment band.

Sentence

The role of the defendant

13.The degree of involvement of the defendant in the unlawful trafficking of the dangerous drugs was significant. She bought the drugs from someone else, repackaged and sold them off in smaller quantities as a retailer. The defendant was careful in the selling of the drugs, distancing herself from the delivery process by leaving them at a fixed point for the buyers to pick up, reducing the risk of being caught red handed in the process. The defendant was not a simple courier.

14.In relation to charge 1, I am told in mitigation that the drugs were bought from a man in Jordan. The defendant made a ‘down payment’ of $2,000. Once she had the money, she would pay the balance of $9,000 for the full price of the drugs. The defendant was working as a part-time cleaner with an average monthly income of $1,000, she was funding the purchase of the drugs by trafficking in them.

15.In relation to charge 2, the estimated street value of the drugs that were found in the defendant’s home was $4,611. The defendant claimed in her video recorded interview that she would sell each packet for $110 to $120.

16.I was told in mitigation that those drugs were purchased from the same man earlier. The defendant however no longer remember for how much nor when they were bought.

Self-consumption

17.I was told that the defendant is a drug addict and that 5g of the mixture in charge 1; and 9 packets of the 25 found in her home were for her self-consumption. Given the fact that the defendant has a long history of drug related offences and had been to the Drug Addiction Treatment Centre for treatment before, I find that there is reason to believe that she is drug dependent and that some of the drugs were in fact for her self-consumption.  I find that the defendant is entitled for the relevant narcotic contents to be removed from the calculation of the sentence for trafficking in dangerous drugs.

Discount: guilty plea

18.I find that there are no mitigating factors that would warrant further discounts in the defendant’s sentence. The fact that the defendant resorted to drugs upon her mother passing away is of little weight having regard to the seriousness of the offence. The only mitigating factor is the defendant’s guilty plea. On the other hand, although this is not the defendant’s first conviction for trafficking in dangerous drugs, her previous similar conviction was some 7 years ago in 2008 and I will not take her trafficking conviction as an aggravating factor. The defendant’s latest conviction was in 2011 when she received a suspended sentence for theft. I will not take her conviction records as an aggravating factor either.

Starting points

Charge 1

19.Based on 5g of the mixture in charge 1 being for the defendant’s self-consumption, the narcotic contents that the defendant is to be sentenced on after making the appropriate subtraction is that of 14.95g of heroin hydrochloride.

20.Given the defendant’s active and significant role in the distribution of the dangerous drugs, for the 14.95g of heroin hydrochloride that the defendant trafficked in charge 1, I adopt a starting point of 63 months’ imprisonment.

21.Given that the only mitigating factor is the defendant’s plea of guilty, she is granted the usual one-third discount upon her guilty plea and sentenced to 42 months’ imprisonment on charge 1.

Charge 2

22.Based on 9 packets of the dangerous drugs and therefore 1.805g of narcotic contents being for the defendant’s self-consumption, the narcotic contents that the defendant is to be sentenced upon after making the appropriate subtraction is that of 3.355g of heroin hydrochloride.

23.Given the defendant’s active and significant role in the distribution of the dangerous drugs, for the 3.355g of heroin hydrochloride that the defendant trafficked in charge 2, I adopt a starting point of 36 months’ imprisonment.

24.Given that the only mitigating factor is the defendant’s plea of guilty, she is granted the usual one-third discount upon her guilty plea and sentenced to 24 months’ imprisonment on charge 2.

Totality

25.The combined narcotic contents which are identified as for trafficking for the 2 charges is 18.305g of heroin hydrochloride. Given the active role of the defendant in their trafficking, it would have attracted a starting point of 69 months’ imprisonment. Applying a one-third discount would result in 46 months’ imprisonment.

26.I will therefore order that 4 months of the sentence in charge 2 be served consecutively to the sentence in charge 1, the balance to be served concurrently.

27.The final sentence for the 2 charges is therefore that of 46 months’ imprisonment.