HKSAR v. Yu Kwok Cheung
Read the full judgment text of DCCC 885/2016 on BabelCite. This District Court judgment.
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 14.49 grammes of a mixture containing 11.61 grammes of heroin hydrochloride.
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DCCC 885/2016 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 885 OF 2016 -----------------
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------------------------------------------- REASONS FOR SENTENCE ------------------------------------------- 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 14.49 grammes of a mixture containing 11.61 grammes of heroin hydrochloride. Facts 2.At about 6.27 p.m. on 2 July, 2016, plainclothes police officers on anti-narcotics patrol at Shek Kip Mei Estate, Sham Shui Po, Kowloon, noticed the Defendant walking furtively at the podium between Block 23 and Block 24, with his left hand pressed against his messenger bag. They intercepted the Defendant, and upon search, found 3 plastic bags containing dangerous drugs as set out in the particulars of the present charge inside a cigarette box in his messenger bag. A mobile phone and cash HK$177 were also found on the Defendant. The Defendant was arrested and under caution said he had bought these “No. 4” for his own consumption. In a subsequent video-recorded interview under caution, the Defendant said, inter alia, that the contents of the three plastic bags was heroin. He purchased them for HK$10,000 from a man called ‘Ah Shing’ at the sitting-out area near Block 21 of Shek Kip Mei Estate at around 6 p.m. just before he was arrested. He bought this large quantity because it was cheaper and could last him longer. He would consume the heroin at home by inhaling and he would consume 2 to 3 packets per day, regardless of their size. The seized heroin could therefore last him 13 to 14 days. He was on his way to take the bus to his home in Shatin when he was arrested. This was his second purchase from ‘Ah Shing’. His previous purchase had been a week previously. He was unemployed and relied on around $2,000 monthly CSSA subsidy. The dangerous drugs were examined by the Government Chemist subsequently and he confirmed that the three plastic bags contained a total of 50 packets containing a total of 14.49 grammes of a mixture containing 11.61 grammes of heroin hydrochloride. The estimated street value of the dangerous drugs seized in July 2016 was HK$11,534. An album consisting of 4 photographs of the seized exhibits and the Government Chemist’s Certificate were produced by agreement. 3.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 4.The Defendant’s criminal record dates back to 1993. He has 18 previous convictions in 14 court appearances, including 2 previous convictions for trafficking in dangerous drugs, one for conspiracy to traffic in dangerous drugs and one for keeping a divan. He also has 7 previous convictions for the offence of possession of dangerous drugs, the earliest being in 1994. His most recent conviction was on 16 October, 2012 for the offence of trafficking in dangerous drugs and he was sentenced to 63 months’ imprisonment. According to his Antecedent Statement, he was released from prison on 10 November, 2015. Antecedent Statement 5.The Antecedent Statement was read into the record. No issue was taken by the Defence on the contents of the Antecedent Statement. The Antecedent Statement disclosed that the Defendant was now aged 45 years. He was born in Hong Kong and received secondary education in Hong Kong. He had been addicted to heroin since the age of 23 years. He is single and lived with his girlfriend. He was unemployed. Mitigation 6.Defence Counsel submitted that the greatest mitigation herein was the Defendant’s plea of guilty from the outset. He submitted that some of the dangerous drugs were purchased for the Defendant’s self-consumption, as he had been addicted to dangerous drugs since the age of 23 years. Mr. Chong accepted that the quantity of narcotics here fell within the band of 10 to 50 grammes in R. v. Lau Tak-ming, [1990] HKLR 370, and the tariff is 5 to 8 years’ imprisonment. He also submitted the authority of HKSAR v. Akinyi Grace Sylvia, CACC 324/2015, to submit that it was unclear whether the dangerous drugs here were No. 3 or No. 4 heroin. When the Defendant’s words under caution as set out in Paragraph 2 of the Amended Summary of Facts that he had bought the “No. 4” for his own consumption was drawn to his attention, Mr. Chong withdrew his submission and accepted that the dangerous drugs here were “No. 4 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 some would be for his own consumption. Ms. Khubchandani 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. 8.The appropriate sentence for trafficking in 10 to 50 grammes of heroin hydrochloride is 5 to 8 years’ imprisonment, pursuant to Lau Tak Ming, supra. 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 lower end of that spectrum, being 11.61 grammes of heroin hydrochloride, and would warrant a starting point of 5 years and 3 months’ (i.e. 63 months) imprisonment. 9.In HKSAR v. Chow Chun Sang, [2012] 2 HKLRD 1121, the Court of Appeal held at p. 1126:
The Court of Appeal did not set down what percentage would be appropriate but held it would depend on the facts of every case. 10.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 an offence of trafficking in dangerous drugs, and that he was unemployed and relied on a monthly CSSA subsidy of $2,000. 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. 11.Looking at those features of the case, I shall discount the starting point by 9 months – a discount of 14.28% - 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 4 years and 6 months’ (i.e. 54 months) imprisonment. 12.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. 13.He is therefore sentenced to 3 years’ (36 months) imprisonment.
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