HKSAR v. Chan Wing Cheong

DCCC 682/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 682 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 34.98 grammes of a mixture containing 28.17 grammes of heroin hydrochloride.

Facts

2.The particulars of the offence are that at around 6.27 p.m. on   9 May, 2016, the Defendant was spotted by a police officer to be acting suspiciously on Woh Chai Street near the pedestrian footbridge outside Mei Shing House, Shek Kip Mei Estate, Sham Shui Po. The police officer followed and eventually intercepted the Defendant on the pedestrian footbridge.  Upon search, 99 different coloured packets of assorted sizes containing the dangerous drugs the subject matter of the charge were found in 3 resealable plastic bags  (marked with “Small:30” “Large:30” and “XL:40” respectively)  and a plastic bag inside a black plastic bag were found  in the blue messenger bag that the Defendant carried. HK$2,875 and RmB 230 cash and a mobile phone were also found on the Defendant.  The Defendant was arrested for the offence of trafficking in a dangerous drug. The dangerous drugs were examined by the Government Chemist subsequently and he confirmed that there was totally 34.98 grammes of a mixture containing 28.17 grammes of heroin hydrochloride. The estimated street value of the dangerous drugs seized was HK$26,200.02. An album consisting of 16 photographs of the seized exhibits and the Government Chemist’s Certificate were produced by agreement.

3.In a subsequent video interview under caution, the Defendant said inter alia that he had bought the dangerous drugs for his own consumption and he knew it was heroin. He knew that the different colours of the packets indicated differences in price and weight i.e. the yellow ones were more expensive than the white ones, and the white ones were more expensive than the pink ones.  The dangerous drugs were enough for his consumption for 20 to 30 days. He was a heroin addict.  He had spent more than $10,000 for the purchase this time, and he still owed the seller several thousand dollars. He worked as a cleaner and logistic worker on a casual basis and earned about $700 a day or $20,000 a month on average. He was not a CSSA recipient.

4.By his plea, the Defendant admitted that he was in possession of the dangerous drugs the subject matter of the charge at the material time and place for the purpose of unlawful trafficking.  I was satisfied beyond all reasonable doubt that the facts admitted by the Defendant supported the charge, and accordingly I convicted the Defendant on the charge that he faced.

Previous Convictions

5.The Defendant’s criminal record dates back to 1979.  He has 23 previous convictions in 17 court appearances, including one previous conviction in 2004 for trafficking in dangerous drugs.  He also has 5 previous convictions for the offence of possession of dangerous drugs, the earliest being in 1987.  His most recent conviction was on 25 November, 2015 for the offence of possession of dangerous drugs and he was sentenced to 6 months’ imprisonment.

Antecedent Statement

6.The Antecedent Statement had been prepared in Chinese by the Prosecution and was read into the record in punti, and the English translation was filed subsequently and has been read into the record. The Defence had no objection to this course.  No issue was taken by the Defence on the contents of the Antecedent Statement. The Antecedent Statement disclosed that the Defendant was now aged 54 years. He was born in Hong Kong and educated to primary 6.  He had been a drug addict since the age of 20 years.  He is single. He used to be a transportation worker.  His last release from prison was in March of 2016.

Mitigation

7.Defence Counsel submitted that the greatest mitigation herein was the Defendant’s plea of guilty from the outset. She submitted that the dangerous drugs were purchased for the Defendant’s self-consumption, as he had been addicted to dangerous drugs since the age of 20 years.  The Defendant claimed that two-thirds of the seized dangerous drugs were for his own consumption whilst it was his intention to sell the other one-third  to cover some of the cost of the dangerous drugs.  He still owed the seller some money for the dangerous drugs.   He had only been discharged from prison in March, 2016, and had applied for CSSA, but this had not yet been approved.  He had tried to find work as a cleaning and logistics worker, but only found work on a casual basis, earning several hundred dollars a day, and his income was irregular, about $10,000 a month. 

8.Mr. Lui for the Prosecution fairly accepted that some of the dangerous drugs would be for the Defendant’s self-consumption as he had said in the video record of interview under caution. But he was unable to accept that as much as two-thirds would be for the Defendant’s own consumption in the absence of supporting evidence.

9.After hearing Counsel in mitigation, I adjourned sentence until today.

Sentencing Considerations

10.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 two-thirds would be for his own consumption. Mr. Lui for the Prosecution very fairly said that the Prosecution did not take issue that some of the dangerous drugs would be for self-consumption. This was what he had said when he had been interviewed under caution.  It was clear that the Defendant was a drug addict.

11.The appropriate sentence for trafficking in 10 to 50 grammes of heroin hydrochloride is 5 to 8 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 middle of that spectrum, being 28.17 grammes of heroin hydrochloride, and would warrant a starting point of 6 years and 3 months (i.e. 75 months) imprisonment.  In HKSAR v. Chow Chun Sang, [2012] 2 HKLRD 1121, 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.

12.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 organized trafficking. I have borne in mind the quantity and packaging of the dangerous drugs in question. I have borne in mind too that the Defendant had only recently been released from prison for a dangerous drugs offence, and that he worked only on a casual basis.   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.

13.Looking at those features of the case,  I shall discount the starting point by 9 months – a discount of about 12% - 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 5 years and 6 months’ (i.e. 66 months) imprisonment.

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

15.He is therefore sentenced to 3 years and 8 months’ (44 months) imprisonment.