HKSAR v. Sze Cheung Chun

DCCC 48/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 48 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to trafficking in a dangerous drug and the particulars are that on 21 October 2015, outside a Yau Ma Tei methadone clinic the defendant unlawfully trafficked in a dangerous drug, namely a total of 8.05 grammes of a mixture containing 6.29 grammes of heroin hydrochloride.

2.On that day at about 3 pm, the defendant was seen looking furtive by a party of police officers.  He was intercepted and searched.  The officers’ intuition was accurate and in the defendant’s right palm the officer found a transparent resealable plastic bag containing 45 pellets of heroin.

3.That 6.29 grammes of heroin has an estimated street value of just over HK$6,000.

4.Under caution at the scene the defendant was cooperative and told the officer that an “Ah Ming” had given him the white powder to sell.  Later at the police station he was interviewed again, and under caution he elaborated and told the officer that Ah Ming had given him the drugs and claimed someone would come to him to collect the drugs at a later stage.

5.The defendant’s plea of guilty today is his best mitigation.  He is not a man with a clear record.  He has 21 previous convictions obtained over 17 court appearances, those include seven drug-related convictions.  Amongst those convictions, the defendant has one conviction for trafficking in a dangerous drug, and in 2011 was sentenced by the District Court to 2 years and 10 months for that offence.  That was not his last conviction, in 2013 he was sentenced to a Drug Addiction Treatment Centre order for possessing dangerous drugs.  He was released from that order in August 2015, just several months prior to his arrest for this offence.  It is clear from the defendant’s criminal record that he has been a drug addict since the 1990s. 

6.I have heard in written mitigation that the defendant is 46 years old and came to Hong Kong in his late teens and was only educated up until primary one.  Prior to his arrest he was working on a casual basis as a waiter earning an average of $7,000 a month.  He has one child from a former marriage who is now an adult and living in the United Kingdom.  He has remarried and his present wife has not returned home since the defendant was arrested for this offence.  He lives with his wife as well as his parents.  His parents are retired and live on CSSA.  Both are in poor health.

7.I have also heard in mitigation that the defendant claims that part of the heroin was for his own consumption.  In mitigation he says that 10 out of 45 packets were for his own consumption.  He paid for them but he got them cheaper because he agreed to deliver the balance.  He was going to separate the drugs that were his own from the rest but was arrested before he could do that.  The prosecution’s stance is not to object to this mitigation.

8.The Court of Appeal have set down guidelines for trafficking heroin, and I refer myself to the authority of R v Lau Tak Ming & Ors [1990] 2 HKLR 370.  In that authority, the Court of Appeal is of the opinion that where between nought and 10 grammes of heroin is involved, a starting point of between 2 to 5 years’ imprisonment would be appropriate.

9.Mathematically speaking here, 6.29 grammes of heroin hydrochloride would attract a starting point of 3 years and 10 months’ imprisonment.  I have heard mitigation and I accept that a part was for the defendant’s own consumption.  He has been an addict for years and has previous similar convictions.  I will deduct a percentage from the starting point to reflect this mitigation. 

10.I have referred myself to the authority of HKSAR v Chow Chun Sang CACC 135/2011.  In that authority, the Court of Appeal discusses several sentences involving defendants who claim part of the drugs were for their own consumption.  The Court of Appeal does not set down what percentage would be appropriate, it would depend on the facts of every case. 

11.It cannot be ignored there is still a latent risk that some of the dangerous drugs that the defendant has said he would consume himself would be given or sold to others by the defendant.  I also take into account that the defendant says about 20 per cent of the dangerous drugs was for his own consumption but he obtained it at a cheaper price in return for drug trafficking.  In fact, about 20 per cent of the dangerous drugs would be 1.25 grammes, that would mean about 5 grammes would be trafficked.  That in itself would attract a starting point of 3 years and 6 months, and I would not ignore the 20 per cent to possess dangerous drugs for one’s own consumption is an offence in its own right.

12.I take into account all mitigation put forward. Mr Yu has said all he can on his behalf.  I also take into account the facts and the quantity of the drug, as well as his previous convictions, background and your cooperation upon arrest.  I will take for this charge a starting point of 3 years and 10 months.  I reduce that starting point by 7 months.  That is a discount of over 15 per cent to reflect that part of the heroin was for his own consumption.  That reduces the starting point to 3 years and 3 months. He has pleaded guilty, and entitled to a discount of one-third.  After that discount is applied, for this offence the defendant is sentenced to 2 years and 2 months’ imprisonment.