HKSAR v. Lin Yuk Chun, Bondy

DCCC 867/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 867 OF 2015

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. Particulars of the charge are that the defendant on 6^th August 2015, at room 3607 of Choi King House, Choi Tak Estate, unlawfully trafficked in 42 grammes of a mixture containing 27.48 grammes of heroin hydrochloride.

Outline of facts

2.The defendant was intercepted by Police officers who were conducting an anti-dangerous drugs operation in Choi Tak Estate when he came out of room 3607 of Choi King House. In execution of a search warrant, Police officers entered and searched room 3607.

3.The following items were found on a computer desk inside room 3607. A white box containing 3 plastic bags, each containing 14 grammes of a mixture, with each mixture containing around 9.1 grammes of heroin hydrochloride; one big transparent re-sealable plastic bag with 9 smaller re-sealable plastic bags; one electronic scale; a pair of scissors; a box of tinfoil; 6 betting slips; one plastic bottle with $6,060 inside; one smart phone; a bankbook in the name of the defendant; and a tenancy agreement for room 3607 in the name of the defendant.

4.The total amount of dangerous drugs found is 42 grammes of mixture with 27.48 grammes of heroin hydrochloride.

5.The defendant was arrested and cautioned for the offence of trafficking in dangerous drugs. Under caution, the defendant said that she bought the heroin to sell to others and would use the money to help provide for her son.

6.In the subsequent video recorded interview, the defendant said that she was unemployed and a CSSA recipient, and has been living with her 9 year old son at room 3607 since 2010. The defendant claimed that she bought 3 packets of heroin the previous Thursday between 11 to 12am from a female named ‘Tai So’ in a park in Mongkok for $21,000. The defendant got acquainted with ‘Tai So’ at a bar in Mongkok.

7.The defendant claimed that she is a drug addict and the purchased heroin would be for her own consumption as well as for sale to two men, ‘Kei Chai’ and ‘Yiu Chai’, whom the defendant met at Ngau Tau Kok Methadone Clinic.

8.The defendant used the smart phone found in room 3607 to contact the two men. She used scissors to cut up the dangerous drugs into smaller pieces. The defendant used the electronic scale to weigh the drugs. Each piece would be about 1 gram and she would sell it for about $700. The defendant would deliver the drugs to them at Choi Shek Lane and Kai Yip Estate. The $6,060 found in the premises consisted of money from CSSA as well as proceeds from the sale of dangerous drugs.

9.The street value of the heroin seized was estimated to be around $34,146.

Previous convictions

10.The defendant has 6 previous convictions with 4 being for the possession of dangerous drugs and one for trafficking in dangerous drugs, which was back in 2005. The defendant’s last conviction was for possession of dangerous drugs in 2007 when she was sentenced to detention at the DATC.

Mitigation

11.The defendant is 49. Her last conviction was back in 2007 for possession of dangerous drugs. She has been on the right side of the law for some 8 years.

12.The defendant is 49 and a single mother. She was solely responsible for looking after her 9 year old son before her arrest. The son is now under the care of Social Welfare Service and has been placed with an orphanage in the interim. Of the $5,000 that the defendant was receiving from CSSA, $1,280 was for rent, $1,200 for utilities and roughly about $1,000 was spent on her son for various expenses.

13.The defendant is eager to start anew and promises never to commit the same offence again for her son’s sake. The reason why she went back to drugs was because of bad influence from her peers. The defendant has since her arrest applied to the Housing Authority to be relocated so as to avoid those peers. Her application has been approved and new accommodation will be arranged upon her release from prison.

14.The defendant understands immediate custodial sentence is inevitable according to the sentencing guidelines. She however still wants the court to give her a last chance. She did try to stay away from drugs for a number of years and she is able to live without drugs while in custody and is optimistic about the future.

15.The defendant claimed that she committed the offence because she was finding it hard to support herself and her son. She was under a tremendous amount of pressure. By the time of her release, her son will be going to secondary school and the defendant will be able to find more time to work during the day and still be able to look after her son after work.

16.Mr. Ng for the defendant refers to the case of HKSAR v Wong Hon-chiu, CACC 137/2015 in support of a discount on the sentence based on self-consumption. The defendant was a drug addict at the time of the commission of the offence. She spends about $100 a day on drugs.

17.After some questioning by this court and taking of instructions from the defendant by Mr. Ng, it was clarified for me that the defendant’s case is that one-third of the 42 grammes of mixture found on the premises was for her self-consumption.

Sentencing guidelines

18.The sentencing guidelines for trafficking of heroin was laid down in the case of R v Lau Tak-ming and Anor [1990] 2 HKLR 370. For quantity of between 10 and 50 grammes of heroin, the tariff sentence is that of 5 to 8 years’ imprisonment.

Sentence

19.The maximum sentence for a conviction upon indictment for trafficking in dangerous drugs is that of a fine of $5 million and life imprisonment.

20.For 27.48g of heroin hydrochloride, applying the guideline tariff, a proper starting point is that of 75 months’ imprisonment.

Self-consumption

21.It is not disputed by the defendant’s counsel that the case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 provides guidance to the court when sentencing defendants who claim that part of the dangerous drugs is for their self-consumption:

“19. We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant. We need to emphasize that unless the judge has erred in principle, the appellate court should not interfere with a discount to sentence given by the judge on account of self-consumption of part of the drugs a defendant trafficked in.”

22.The defendant was last sent to the Drug Addiction Treatment Centre in 2007, indicating that she was a drug dependent at the time, which was more than 8 years ago. This timing coincides with the birth of her son who is now 9 years old. It would appear that the arrival of the child brought around a change in the defendant’s lifestyle.

23.The defendant was dealing with dangerous drugs where her son lives. Should the 9 year old boy’s curiosity got to him and he should ingest some of the drugs, the consequences will be serious. The defendant’s selfish and thoughtless action must be punished and deterred.

24.The trafficking was premeditated. The defendant bought the drugs from someone, brought the drugs home, cut them up, packaged them and then delivered them to the buyers. There was definitely organization, albeit minimal.

25.The defendant was selling the drugs for financial gain. Despite what she told the court through counsel how she had lied in her video recorded interview about selling the drugs at $700 per 1 gram packet, I find that it was not the case, she was not lying. The defendant had been arrested before. She had gone through the court process before. She must have known what she said in her video recorded interview was important and will be used against her in court. There was no reason why she would tell the Police that she was selling the drugs at a higher price than she was in fact selling them.

26.The defendant was receiving $5,000 from CSSA. A total of about $3,480 was spent on housing and living expenses. The total street value of the drugs found on the premises was $34,146. According to the defendant, one-third of the 42 grammes mixture was for her own consumption. One-third of the mixture would cost about $11,382. If what the defendant is saying is true, it must be the case that the defendant was financing her addiction through trafficking in dangerous drugs. 

27.Given all the circumstances of the defendant’s commission of the present offence as well as the defendant’s background, I am satisfied that the defendant is entitled to a discount of slightly more than 15% to reflect the fact that perhaps one-third of the heroin hydrochloride in question was for the defendant’s self-consumption.  As such, the starting point for sentence is reduced on that basis to 63 months’ imprisonment.

Mitigating factors

28.I find that there are no particular mitigating factors that would allow me to grant a further discount other than the usual one-third for the defendant’s guilty plea.

Aggravating factors

29.Although the defendant has 6 previous convictions and one similar conviction, they were all committed more than 8 years ago. The previous trafficking conviction was back in 2005, some 10 years ago. I will not take her conviction record as a basis to enhance her sentence in the present case.

Conclusion

30.After applying the usual one-third discount for her guilty plea, the defendant is sentenced to 42 months’ imprisonment (3 years and 6 months).