HKSAR v. Kong Tim Keung

DCCC 957/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 957 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of “Trafficking in a dangerous drug”. The dangerous drug involved is 10.86 grammes of heroin hydrochloride.

Summary of facts

2.In the afternoon of 6 August 2016 near Lung Wai House, Lower Wong Tai Sin Estate, Kowloon, the defendant was found acting furtively and intercepted by police.  He was then found to have possessed in his trousers’ right front pocket altogether 66 pellets[1] containing 10.86 grammes of heroin.

3.Under caution, the defendant said that it was his first time buying those pellets of heroin from Ah Ming for his own consumption.  He paid $10,500 for the dangerous drugs. His daily dosage was 6-8 yellow pellets and those seized heroin was enough for a week’s consumption.  As he was living in Yuen Long, he bought the heroin in bulk. He was a CSSA recipient and was receiving $4,500 per month.  The cash of $1,580 found in his possession was his saving from the allowance.

4.The street value of the heroin seized in the present case was estimated to be around HK$10,093.

5.The defendant now admits that he possessed the said heroin for the purpose of unlawful trafficking.

Mitigation

6.The defendant is aged 52, unemployed and living with his girlfriend in Yuen Long. He has a long history of criminal records since 1987. More than 10 out of 30 records were of dangerous drug related offences. Most of the others concerned dishonesty related offences. He worked as hawker and driver in the past but has been receiving CSSA in recent years. He is currently receiving $4,500 per month. It was also mitigated that the defendant had been suffering from Schizophrenia and needed to visit out-patient clinic every 4 months.

7.It was said by his counsel that that the defendant had been addicted to heroin since 1979. In the present case, it was mitigated that 20% of the seized drugs was for his own consumption, while 10% was for her girlfriend. The remainder was for his sharing with and selling to his friends.  Miss Poon for the prosecution has fairly taken no issue that part of the dangerous drugs might be for defendant’s own consumption, given the past criminal records and his admission under caution.

Sentence

8.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.  Sadly, many of the drug traffickers are drug addicts themselves but that will not alleviate Hong Kong courts’ repugnance of the enormous harm bought to the society by dangerous drugs.

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 10 to 50 grammes of heroin, the sentence ranges from 5 to 8 years’ imprisonment.

10.The defendant trafficked in 10.86 grammes of heroin in the present case,I consider the appropriate starting point is 5 years, i.e. 60 months’ imprisonment. Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles set out in the authorities.[2]  In Chow Chun Sang, Yeung VP held:-

“We are of the view that 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 organized and premeditated, and the background and criminal record of the defendant.” (paragraph 19, p 1126)

11.Having considered all the circumstances, I am satisfied that there is sufficient evidence to show that the defendant is a drug user at the time of arrest.  I am prepared to give 15% of reduction for that and reduce the sentence to 51 months to reflect the discount for self-consumption.

12.A one-third discount is given for the guilty plea, reducing the sentence to 34 months.  Apart from this, I see no other mitigating factors which warrant any further discount. Hence, I sentence the defendant to 34 months’ imprisonment.