HKSAR v. Hui Ping Wah

DCCC 825/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 825 OF 2015

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REASONS FOR SENTENCE

1.The defendant faces to a charge of "Trafficking in a dangerous drug" (Charge 1) and a charge of "Possession of apparatuses fit and intended for the injection of a dangerous drug" (Charge 2).

2.He pleaded guilty to Charge 1.  The prosecution applied to leave Charge 2 in the court file; not to be proceeded against him without leave of court.  I granted the application.

Summary of Facts

3.About 10:20 p.m. on 16 July 2015, PCs 16014 and 14980 saw the defendant coming out of Room 2910, Ping Chun House, Ping Tin Estate, Lam Tin ("the Flat").  They stopped and searched him.  Keys to the Flat were found on the defendant.

4.The officers entered the Flat under a search warrant.  Upon search, the following items were found on a desk next to a bed :-

(i) 4 resealable plastic bags which contained a total of 13.76 grammes of a mixture containing 9.01 grammes of heroin hydrochloride;

(ii) 4 used syringes containing a very small quantity/traces of heroin and midazolam; and

(iii) an electronic scale.

5.The Police also found on another table a paper box containing a number of unused syringes and empty resealable plastic bags.

6.Under caution, the defendant claimed, inter alia, that the dangerous drug was for his self-consumption.  In his cautioned interview, the defendant admitted that the 4 plastic bags contained No.4 heroin and explained how he purchased the drug. He claimed he used the electronic scale to weigh the drug in order to avoid overdose.  He also claimed that being a disabled person, he purchased the drug in a larger quantity.

Mitigation & Sentence

7.The defendant is 61 and has 13 conviction records, which included 2 "simple possession" offences and 1 "trafficking" offence.  Defence counsel Ms. YAP informed me that the defendant has been a heroin addict since 1977[1].  He is divorced with 2 adult sons.  His ex-wife and sons are present in court today. 

8.In mitigation, Ms. YAP submitted that the defendant has been relying on social welfare since 1988.  He is assessed to be of 100% permanent disability.  In 2004, the defendant suffered from avascular necrosis.  Last year, he suffered from feet gangrene and was advised to have both legs amputated, but he refused.  He is hardly able to walk.  Ms. YAP further submitted that half of the heroin found in the Flat was intended for the defendant's self-consumption.  Mr. TSE for the prosecution made no comment on this matter.

9.The Court of Appeal has laid down clear sentencing guidelines for trafficking in heroin (see The Queen v LAU Tak-ming & others [1990] 2 HKLR 370).  For up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment.  The defendant trafficked in 9.01 grammes, the appropriate starting point is 57 months.

10.Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[2].  There is sufficient evidence to suggest that the defendant was a drug user at the time of arrest.  I also accept that his immobility might have motivated him to stock up his drug supply. On the other hand, the electronic scale and empty resealable plastic bags strongly indicate a high risk of trafficking.  Furthermore, the defendant's immobility renders it less likely that he needs to carry with him the right dosage of heroin for self-consumption when he is not home.  Thus, the empty resealable plastic bags are more likely to be used for trafficking purposes.  Having considered the likelihood of all possibilities, I am prepared to reduce the sentence to 45 months[3] to reflect the discount for self-consumption.

11.Finally, a one-third discount is given for the guilty plea, reducing the sentence to 30 months. Apart from this, I see no other mitigating factors which warrant any further reduction.   I sentence the defendant to 30 months' imprisonment.