HKSAR v. Huang Guosheng

DCCC 270/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 270 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant has been convicted on his own plea of one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134, namely 8.51 grammes of a mixture containing 6.96 grammes of heroin hydrochloride.

Facts

2.The particulars of the offence are that at around 6 a.m. on 1 January, 2016, police officers in plainclothes were conducting an anti-narcotics patrol in the Sham Shui Po area of Kowloon and noticed the Defendant  pacing back and forth furtively outside No. 287 Tai Nan Street, Sham Shui Po and intercepted the Defendant for inquiry. Upon search, they found the dangerous drugs the subject matter of the charge in the right front pocket of the Defendant’s jacket. There was one transparent resealable plastic bag containing 4 packets of dangerous drugs wrapped in orange plastic sheet wrappings (Exhibit 1) and 1 transparent resealable plastic bag containing 38 packets of dangerous drugs wrapped in green plastic sheet wrappings (Exhibit 2). HK$1,580 cash was also found on the Defendant.  The Defendant was arrested and under caution said the dangerous drugs were for his own consumption.  The dangerous drugs were examined by the Government Chemist subsequently and he confirmed that Exhibit 1 was 4 packets containing 1.95 grammes of a mixture containing 1.54 grammes of heroin hydrochloride while Exhibit 2 was 38 packets containing 6.56 grammes of a mixture containing 5.32 grammes of heroin hydrochloride. The total quantity of heroin hydrochloride was 6.96 grammes.  The estimated street value of the dangerous drugs seized was HK$6,323.-.

3.In a subsequent video interview under caution, the Defendant said inter alia that he had bought the dangerous drugs at about 5.30 a.m. on 1 January, 2016 from an unknown male at Tung Chau Street Park in Sham Shui Po for HK$5,500.-. He bought these in bulk as it was cheaper to do so. He was on his way home when he was arrested – he lived on the 3^rd floor of the building at the location where he was intercepted and arrested.  He consumed about 1.5 packets of Exhibit 2 each day by way of injection into his thigh. Exhibits 1 and 2 could last him for about 1 month at his consumption rate.  He was unemployed and received monthly CSSA subsidy of HK$3,500.-. His wife, a construction site worker, had lent him the money that he used to buy the dangerous drugs, although she did not know he was a drug addict and intended to use the money to purchase dangerous drugs.  The HK$1,580.- found on him was the remainder of the CSSA subsidy from December, 2015.

Previous Convictions

4.The Defendant’s criminal record dates back to 2009. He has 19 previous convictions in 8 court appearances including one previous conviction for trafficking in dangerous drugs in 2009, a conviction similar to the present one.

Mitigation

5.The Defendant is now aged 60 years.  He is married and lives with his wife. His address as shown on the Antecedent Statement is at Room 4, 3/fl., No. 287 Tan Nan Street, Sham Shui Po.  He was seen by the police officers who intercepted him to be pacing furtively back and forth outside No. 287 Tai Nan Street and he had told them that he lived at the 3^rd floor of the building at that address.  I accept that ‘Tan Nan Street’ on the Antecedent Statement should read as ‘Tai Nan Street’.

6.He was born on the Mainland and has received ‘Secondary High’ education on the Mainland. At the time of his arrest, the Defendant was unemployed and he said under caution that he received monthly CSSA subsidy of $3,500. I am told that he has a medical problem for which he was hospitalized for a few days during his current remand – a dissected aorta – the medical reports and follow-up appointment slips are in Tab 8 of the bundle submitted by Mr. Szeto.  From the outset, the Defendant claimed that the dangerous drugs were for self-use, as he told the police officers at the time of his arrest and when he was interviewed under caution which Mr. Szeto has produced in his bundle at Tab 5 and Tab 7, as well as the witness statement of the arresting police officer, at Tab 6.  He also referred to photo 3 in the photo album submitted, which depicts Exhibits 1 and 2 seized from the Defendant.  In Counter 149 to 158 of the video  record of interview at Tab 7,  the Defendant said he consumed 1.5 pellets a day – approximately about $100 – and said he was referring to the green pellets he had with him, namely Exhibit 2. He described himself as having been an addict for 30 years and described how he consumed the heroin.

Sentencing Considerations

7.The defendant now admits that he was in possession of the drugs in question for trafficking, although in mitigation Counsel for the defendant submitted that a part would be for his own consumption. Mr. McNamara for the Prosecution very fairly said that the Prosecution did not take issue that some of the dangerous drugs would be for self-consumption as he said it was clear that the Defendant was a drug addict.

8.As Mr. Szeto has rightly said, the appropriate sentence for trafficking in up to 10 grammes of heroin hydrochloride is from 2 to 5 years’ imprisonment, pursuant to Lau Tak Ming [1990] HKLR 370. The sentence follows the quantity of drugs.  That would put the quantity in the defendant’s possession for trafficking at the material time at the higher end of that spectrum, being 6.96 grammes of heroin hydrochloride, and would warrant a starting point of 3 years and 9 months (i.e. 45 months) imprisonment.  Mr. Szeto also submitted the authority of HKSAR v. Chow Chun Sang, [2012] 2 HKLRD 1121 (at Tab 3) wherein the Court of Appeal held at p. 1126:

“ 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 organised and premeditated, and the background and criminal record of the defendant.”

The Court of Appeal did not set down what percentage would be appropriate but held it would depend on the facts of every case.

9.I have taken into account that the defendant is a drug abuser and that some of those drugs would have been for his own consumption.  There was no direct evidence of sale of any drugs. Nor is there any evidence that the Defendant was involved in premeditated and organised trafficking. I have borne in mind the quantity and packaging of the dangerous drugs in question. The Defendant was seen pacing downstairs the building where he lived in a furtive manner very early in the morning.  I have borne in mind too that the Defendant was unemployed and living on social assistance. I have also borne in mind the latent risk of the drugs for self-consumption falling into the wrong hands.  Of course, any determination of a percentage must involve an element of speculation and must of itself be an approximate figure.

10.Looking at those features of the case,  I shall discount the starting point by 6 months – a discount of just over 13% - to reflect that some of the dangerous drugs were for the Defendant’s own consumption. I have decided that the appropriate starting point for this offence is therefore one of 3 years and 3 months’ (i.e. 39 months) imprisonment.

11.The defendant has pleaded guilty and he is entitled to a discount of one-third to reflect that.  That is the only mitigation of weight before me.

12.He is therefore sentenced to 2 years and 2 months’ (26 months) imprisonment.