HKSAR v. Chow Yu Cheung

DCCC 868/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 868 OF 2015

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant has pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134: specifically, 23.16 grammes of a mixture containing 15.62 grammes of heroin hydrochloride and 50 tablets containing 0.66 grammes of midazolam.

2.The facts of this case are straightforward.  It is a stop and search case.  On 3 August 2015, at about 12.30 am, two officers spotted the defendant in Cheung Sha Wan, Un Chau Street, looking suspicious, and stopped him to investigate.

3.During the search the police found in the defendant’s backpack 100 wrapped packages containing 23.16 grammes of a mixture containing 15.62 grammes of heroin hydrochloride, as well as the 50 tablets of midazolam.

4.The defendant also had over HK$10,000 on him, and three mobile phones.

5.The defendant, under caution, did not admit trafficking, but did admit possession of the heroin and midazolam for his own consumption.

6.The estimated street value of the heroin is HK$15,771.96, and the midazolam, HK$2,850.

7.The packaging of the heroin clearly shows two sizes.  There are 50 pink packages and 50 white packages.  They look the same size in each colour, and according to the Government Chemist report, the pink packages should contain 0.28 grammes of heroin, and the white packages should contain, according to the Government Chemist Certificate, 0.12 grammes of heroin.

8.For many years heroin has been packaged in this way.  There are different prices for different sizes and colours.

9.The defendant’s best mitigation today is his plea of guilty.

10.The defendant is 39 years old, divorced, and relying on Government assistance, CSSA.  I have been told that he also works as a hawker.  According to his record, the defendant has been in and out of prison and drug addiction treatment centres since he was about 20 years old.

11.The defendant has many previous convictions - 28 - but none for trafficking dangerous drugs.  Of those 28, three are for possession of dangerous drugs.

12.I have heard all that can be said on the defendant’s behalf in mitigation.

13.There are guidelines for trafficking heroin, and I have referred myself to R v Lau Tak Ming and Others [1992] HKLR 370.  The relevant guideline for trafficking heroin is where the drugs are between 10 to 50 grammes, a 5 to 8-year starting point would be appropriate.

14.Mathematically speaking, here, the heroin would attract a starting point of 5 years and 4 months.  It is part of the defendant’s mitigation that about 10 per cent, or 10 packages of those found on him, were for his own consumption, or about 1.5 grammes.  The prosecution do not contest this or object to this mitigation being put forward.

15.Looking at his previous convictions and number of visits to the drug addiction treatment centre, I would accept that he is a drug addict.

16.I have also taken into account the authority of HKSAR v Chow Chun Sang CACC 135/2011.  There, the Court of Appeal discuss cases where a portion of the drugs is for self‑consumption and the rest for trafficking.  The Court of Appeal holds the proposition that a percentage can be deducted from the starting point where some of the drugs is for self‑consumption.

17.I will consider the facts here and accept that mitigation.  I will reduce my starting point by just over 10 per cent.

18.Defendant, please stand up.  I will take a starting point of 5 years and 4 months for this quantity of heroin. I reduce that by 7 months for the fact a portion would have been for self‑consumption. That produces a starting point of 4 years and 9 months.  You are entitled to a discount of one‑third from that starting point because you have pleaded guilty.

19.After that deduction, you are, for this offence, sentenced to 3 years and 2 months.

20.I have not taken into account the midazolam here.  In my view, the amount is de minimis, very small.

21.The sentence is one of 3 years and 2 months.

COURT: Do you understand that sentence?