HKSAR v. Leung Shuk Han

DCCC 218/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 218 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence and that is the offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.The particulars show that she pleads guilty to unlawfully trafficking in a total of 4.89 grammes of heroin hydrochloride, that is the narcotic content of the drug.

3.The prosecution's summary of facts has been agreed and I have convicted the defendant accordingly.

4.The facts show that the offence was committed on 31 December 2015.  The Police were conducting an anti-dangerous drugs operation at an area in Kwai Chung.  They patrolled the 11th Floor of an estate house in Kwai Chung and saw the defendant walking out of a room.  She was searched at that time.  Inside a bag with the words "West Kowloon Psychiatric Centre" a total of 25 packets of plastic bags were found which contained the 4.89 grammes of heroin hydrochloride.  The defendant was immediately arrested for trafficking dangerous drugs and caution was administered.  She said "Ah sir, those number four heroin are not all for selling, some of them are for my own consumption, please give me a chance". 

5.A search was conducted.  There was cash of over $4,000, a mobile phone and some keys were found.  The Police entered the Room 1120 and they found some further items of relevance. There was a tin box with plastic wrapping, electronic scale, two resealable plastic bags and a piece of paper. 

6.The defendant was forthcoming in two video-recorded interviews.  She confirmed the 25 packets of heroin were hers. She originally bought 12 grammes of heroin for around $3,800 in Yau Ma Tei.  At the time she was arrested she was going to the park on the ground floor at Chui Kwai House.  She was going to sell it at $370 for what is almost half a gramme.  She said half the heroin seized was for trafficking and the rest was for her own consumption.  She would consume about 2 to 4 grammes daily. Some of the items that were found such as the metal box, the plastic wrappings and the scale were for trafficking purposes.  She said she had been a drug addict of heroin for about 30 years.

7.The retail price of the drugs was agreed at just over $5,000 at $5,297.59.

8.The defendant admitted her antecedents and her criminal record.  We know from those that she is aged 54 and she resided at the room where outside she was arrested.  In terms of health she has suffered from depression but is an outpatient at present and I understand she takes Midazolam by way of medication.

9.As far as her criminal record is concerned, she has a lengthy record for possession of dangerous drugs.  As early as 1988 she was sentenced to imprisonment for offences of possession of dangerous drugs and possession of piping equipment fit and intended for smoking or inhaling that drug and prior to that in 1980 and then later in 1984 for offences of a dangerous drug and robbery she had been sent to a Drug Addiction Treatment Centre.  Following those offences in the 1980s, she continued to commit offences of possessions of a dangerous drugs and then in 2006 and 2010 offences of trafficking in a dangerous drug.  In fact in April of 2010 she was sentenced to 2 years and 4 months' imprisonment for trafficking in a dangerous drug. More recently in August of last year, 2015, she was sentenced to a suspended sentence of imprisonment for unlawful possession of dutiable goods.

10.The record of convictions certainly supports the defendant's admission in her video-recorded interview that she is a long-term drug addict.  There have been numerous attempts to treat that addiction by sending the defendant to Drug Addiction Treatment Centre.  It would appear from the criminal record that they have not been successful.  It would appear we are in the unfortunate situation where the defendant's criminality is largely driven by her need to satisfy her addiction to heroin and certainly since the year 2006 and again in 2010 we can form the view that her addiction has led her to the need to traffic in the drugs to secure drugs for her own addiction.  But it would also appear that sentencing in respect of the trafficking in dangerous drugs in 2006 and 2010 was not of a kind that was sufficient to deter the defendant from committing these offences and of course must be seen in the circumstances as an aggravating feature in these offences.

11.Turning to the question of sentence, the sentence for trafficking in a dangerous drug and the dangerous drug being heroin is largely governed by guideline sentence.  I am concerned with the level of narcotic here and that is the figure of 4.89 grammes.  That places it within the sentencing range of  described up to 10 grammes which is between 2 to 5 years' imprisonment.  I must determine an appropriate starting point for sentence and then consider both aggravating and mitigating factors and then arriving at a figure from which a deduction for the plea of guilty can be made.  I must also consider at the end of that the effect of the suspended sentence of imprisonment which now the defendant faces.

12.To a certain extent this is a mathematical exercise.  The defendant's quantity of drugs, that is 4.89 grammes, puts us towards the middle of the tariff band.  I consider, therefore, the appropriate initial starting point is 39 months' imprisonment. 

13.The aggravating factor in this case is the defendant's previous convictions for trafficking in dangerous drugs.  They are sufficiently near in time to be matters that I must consider in sentencing and also show the failure of deterrence in the past.  I consider that aggravating factor should add 6 months to the figure I have already quoted, that leads to a starting point of sentence at this point now of 45 months' imprisonment. 

14.I must factor the mitigating factors.  The defendant in her video-recorded interview stated that up to the half the drugs were for her own consumption.  It is the position that the court can take that into account and is relevant to sentence where the court accepts that a significant portion of the dangerous drugs were for the defendant's own consumption.  It would appear to be from the defendant's addiction history which is amply evidenced by her previous conviction record and attempts at addiction treatment that I can clearly accept that part of the drugs would be for her self-consumption without any further evidence being given.  I also consider that given what the defendant had said in the video-recorded interview that it would be a significant portion of the drugs that would be consumed by her.  Of course the amount that she would consume will depend on the amount she can sell and to a certain extent must be a speculative figure.  The defendant said she would consume up to half of the drugs that she had purchased.  I see no reason why that cannot be accepted. 

15.The discount appropriate for this mitigating factor can range between 10 to 25 per cent of the starting point and the authority for that comes from the case of HKSAR v Tam Ling Yuen which is CACC159/2015.  In that case reference is made to other authorities where a figure of 10 per cent was deducted in a case where half the drugs would have been for self-consumption and 15 per cent where two-thirds of the drugs would have been for self-consumption.  In this case the deduction lies more in the region of the 10 per cent deduction, nevertheless the figure must be somewhat inexact because of the necessity of converting percentages into months. 

16.What I shall do is deduct a figure of 6 months for this head of mitigation.  This leaves a final figure before deduction of the one-third discount of 39 months and the one-third discount will bring that down to 26 months' imprisonment. 

17.There is the question of the suspended sentence.  We are almost one year into the suspension period.  What I shall do is activate that sentence and order that 2 weeks of that sentence be served consecutively in the bounds of 2 weeks concurrently to the existing sentence. This gives a figure of 26 months and 2 weeks' imprisonment.