HKSAR v. Yeung Chi Chung, Stanley
Read the full judgment text of DCCC 949/2015 on BabelCite. This District Court judgment was delivered on 17 December 2015.
1. Defendant appeared before me this morning and pleaded guilty to a single charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
Cites 1 case
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DCCC 949/2015 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 949 OF 2015 --------------------------
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---------------------------------------- REASONS FOR SENTENCE ---------------------------------------- 1.Defendant appeared before me this morning and pleaded guilty to a single charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 2.The subject matter of the dangerous drugs in this charge is as follows:-
3.According to the amended Summary of Facts which the defendant has admitted, at about 2:38 pm on 14 August 2015, the police conducted an anti-narcotics operation in Sham Shui Po district. The defendant was spotted by the police outside Ground Floor, Block 21, Shek Kip Mei Estate, Sham Shui Po, Kowloon when he was seen carrying a transparent bag with his right hand, acting suspiciously. 4.The defendant was then intercepted by the police. Upon a search of the said transparent bag, the police found the above dangerous drugs respectively in Exhibit 1 to 3 and he was immediately arrested. Under caution, the defendant admitted that he was selling heroin to earn a little money for living and he asked for a chance. 5.In a subsequent video-recorded interview, the defendant further explained that earlier in the day, he originally went to Shek Kip Mei to buy some heroin for his self‑consumption but instead he was approached by a drug dealer to sell the drug for him. The defendant agreed and he went to retrieve the exhibits from a lame male as instructed by the drug dealer. It was agreed that Exhibit 1 to 3 would be respectively sold at $230, $170 and $70 each and that he would be rewarded for $20, $15 and $5 for selling each of Exhibit 1 to 3 respectively. 6.Defendant was arrested before selling any of the drugs he took from the male seller and he told the police that he had no way to contact the male seller or the lame male. 7.At the time of the offence, the street value of the heroin and midazolam seized was $8,975 and $1,140 respectively. Criminal records and the background of the defendant 8.Defendant is aged 52 and he has seven previous convictions involving a total of nine charges, out of which four were possession of dangerous drugs. It is noted that he has no previous trafficking-in-dangerous-drugs record. He was born in Hong Kong and was educated up to Form 5. At the time of arrest, according to the mitigation, he was unemployed and living on public assistance. Before that, he used to work as a casual cleaning worker. The defendant is a divorcee and he lived with his girlfriend in a public housing estate. Mitigation 9.In mitigation, it was submitted on behalf of the defendant that he was indeed very remorseful and also co‑operative with the police in the earliest opportunity by supplying information he knew to arrest the drug seller. 10.At the time of the offence, I was told that the defendant was suffering from depression so he went to the Shek Kip Mei area to buy drugs but instead he was persuaded by the drug seller to sell the drugs for him. Since the defendant did not sell any drugs before he was arrested, it was submitted that there was no profit element in this case. It was also said that his conduct was not sophisticated as he was carrying the transparent bag with him on his hands in broad daylight and that he has no previous trafficking record. 11.It was submitted that in light of this background of the defendant as well as the circumstances of this case that perhaps the court can consider passing a lower sentence of about 4 years’ imprisonment as the starting point. Sentencing consideration 12.Trafficking in dangerous drugs is of course a very serious offence. The maximum sentence is life imprisonment. In the District Court, the maximum sentence is 7 years’ imprisonment. Therefore, anyone who is involved in trafficking activities, once caught, would expect to be dealt with by the court severely. The Court of Appeal has also said that in serious offences such as trafficking in dangerous drugs, family circumstances virtually play no part in any mitigation. 13.Usually in sentencing offender of trafficking in dangerous drugs, the most important consideration is the quantity of the drugs. Here we are dealing with both heroin hydrochloride and midazolam which the Court of Appeal had already laid down different tariffs for these two very different types of the drugs. According to the tariff for heroin hydrochloride in the case of R v Lau Tak Ming & Others [1990] 2 HKLR 370, up to 10 grammes of heroin, the starting point is 2 to 5 years’ imprisonment. As for midazolam, for up to 2,000 tablets, the sentence is as the court sees fit whilst over 2,000 tablets, the starting point is only 6 to 12 months’ imprisonment. (see AG v Chan Chi Man [1987] 2 HKLR 221) 14.Comparing these two guidelines, one can immediately see that heroin hydrochloride is far more potent and serious and the quantity of the midazolam as compared to heroin is relatively small. 15.In order to sentence the defendant fairly, realistically and in a common-sense manner, I consider that in the end, the overall sentence after taking into account the presence of this relatively small quantity of midazolam would not be much affected even if I adopt the ratio test by converting the amount of midazolam into heroin. 16.That said, I cannot overlook the fact that here we are dealing with two different types of drugs and the Court of Appeal has already said that trafficking in a variety of drugs is an aggravating factor justifying an enhanced sentence. 17.The defence has urged the court to adopt somewhat a lower starting point in this case. While I accept that there is no aggravating factor present in this case, I am not persuaded that the present case warrants a further discount from the starting point other than the usual one-third discount that the defendant is entitled because of his plea of guilty. 18.The assistance that the defendant had rendered to the authorities was feeble and, more importantly, nobody was arrested following his information. The court can only recognise positive assistance to the authorities and the fact that the defendant did not receive any profit was simply because he was well arrested before he began selling any drugs to any other buyers. 19.According to the tariff in Lau Tak Ming, for the present quantity, the proper starting point should be 51 months’ imprisonment. Because of the presence of midazolam which may have the effect of mixing the two drugs together and also catering for a wider market, I consider that I should add another 3 months to the starting point. The total starting point before discount is therefore 54 months. After the reduction, the sentence that the defendant has to serve is therefore 36 months’ imprisonment.
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Cases cited in this judgment