HKSAR v. Yan Siu Kwong

DCCC 794/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 794 OF 2016

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is heroin.

Summary of Facts

2.On 23 May 2016, PC 13601 (PW1) and other police officers stopped the defendant at the Luen Wan Street Sitting-out Area in Mongkok.  PW1 asked the defendant whether he had something in his mouth.  The defendant then spat out 3 packets which contained a total of 0.82 gramme of a mixture containing 0.64 gramme of heroin hydrochloride.

3.Upon search, 20 packets which contained a total of 5.53 grammes of a mixture containing 4.37 grammes of heroin hydrochloride were found in the defendant's shoulder bag.  Under caution, the defendant claimed that he purchased the heroin for self-consumption from an unknown male at the street.

4.The defendant was brought back to the police station and was subsequently remanded in jail custody by a magistrate.

5.About 2:00 p.m. on 26 May 2016, an officer of the Correctional Services Department found in the defendant's fecal discharge a packet which contained 0.29 gramme of a mixture containing heroin hydrochloride.  Under caution, the defendant admitted that the packet belonged to him.  He put it in his mouth on 23 May 2016.  He saw the police officers and was frightened, so he swallowed it during the arrest.

6.The defendant now admits that he possessed the heroin found on him for the purpose of unlawful trafficking.

Mitigation & Sentence

7.The defendant is now 49 and has 3 conviction records, none of which are drug-related.  Defence solicitor Mr. KWOK informed the court that the defendant came to Hong Kong from the mainland in 2000.  He is divorced and is a street sleeper.  Prior to his arrest, he was a casual decoration worker with a daily wage of $1,000.

8.In mitigation, Mr. KWOK submitted that the defendant has been a heroin addict for 20 years.  Mr. KWOK further submitted that the defendant had intended to consume 1/3 of the heroin found on him.  Mr. CHAN for the prosecution indicated a neutral stance regarding the self-consumption quantity claimed by the defendant.

9.A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.

10.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 5.01 grammes of heroin, the appropriate starting point is 3.5 years.

11.Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[1].  There is no evidence of the defendant's drug addiction, except his bare assertion that he has been a heroin user for 20 years[2]. I am surprised that despite his claim for having been a heroin addict for many years, he has no drug-related conviction record.  I am aware that at the scene, the defendant claimed under caution that he purchased the heroin for self-consumption.  All in all, I have no basis to doubt his claim that he is a drug addict.  In relation to the quantity claimed for self-consumption, my observation is that the number of packets and the way the heroin was packaged strongly indicated that the drug was ready to be trafficked.  I am prepared to reduce the sentence to 3 years[3] to reflect the discount for self-consumption.

12.Finally, a one-third discount is given for the guilty plea, reducing the sentence to 2 years.  Apart from this, I see no other mitigating factors which warrant any further reduction.   I sentence the defendant to 2 years' imprisonment.