HKSAR v. Yan Pui Wai

DCCC 998/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 998 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of trafficking in a dangerous drug.

Facts

2.At about 10:17 on 11 July 2016, PC9212 and his colleagues were on patrol duty in plainclothes.  He noticed the defendant near the junction of Tung Chau Street and Nam Cheong Street, Sham Shui Po.  As the defendant appeared to be nervous with his left hand in a fist, PC9212 intercepted the defendant and revealed his police identity.  The defendant immediately dropped something red in color onto the ground near his left foot and walked away.  PC9212 stopped the defendant and took him back to where he had dropped something red. PC9212 picked it up and it was found to be two re-sealable plastic bags each containing 30 red colored pellets (DD1 and DD2).  In response to PC9212’s enquiry, the defendant said that DD1 and DD2 were No 4 and an unknown woman gave him $1,000 to sell No 4.

3.At about 10:20 on the same day, the defendant was arrested for trafficking in a dangerous drug.  Under caution, he admitted that an unknown woman gave him $1,000 to sell No 4 ie, DD1 and DD2.  The defendant was at the time in possession of a cash sum of $1,050, one notebook and one mobile phone.

4.DD1 and DD2 were subsequently examined by the Government Chemist and with the results as follows:-

(a) DD1 is 30 packets (consisting of plastic wrappings) containing a total of 4.74 grammes of a mixture containing 3.60 grammes of heroin hydrochloride (a salt of heroin);

(b) DD2 is 30 packets (consisting of plastic wrappings) containing a total of 4.77 grames of a mixture containing 3.59 grammes of heroin hydrochloride (a salt of heroin).

5.The estimated street value of both DD1 and DD2 was about $3,796.

Criminal record

6.The defendant has 22 previous records and seven of them related to dangerous drug offences including one trafficking offence. 

Mitigation

7.The defendant, aged 43, is single and was born in Hong Kong.  He received education up to Form 3 in Hong Kong.  He has two sisters.  He lives with one of his sisters and his father, who is now retired and had an operation.  Prior to the arrest, he worked as a delivery worker on a casual basis earning $16,000 per month and made financial contributions to his family.

8.He committed the present offence for money and confessed to the police immediately upon enquiry and arrest.  It is submitted that the offence was not well planned and not part of an organized crime.  A small quantity of the drugs was intended for the defendant’s own use. 

9.Mr Yip also referred the court to R v Lau Tak Ming & Others, CACC 230/1989 regarding the sentencing tariffs; HKSAR v Chow Chun Sang, CACC 135/2011, in support of his submission regarding drugs for own use; and HKSAR v Huang Guosheng, DCCC 270/2016.

Sentence

10.According to the guidelines laid down by the Court of Appeal in Lau Tak Ming, the sentence upon conviction after trial for trafficking in heroin up to 10 grammes is between 2 and 5 years imprisonment.  Having considered the cases relied upon by the Defence, I find that trafficking in 7.19 grammes of heroin hydrochloride would attract a starting point of about 45 months.  Although the defendant has one similar conviction in 2009, it does not, in my view, constitute an aggravating factor.

11.I have carefully considered everything said by Mr Yip on behalf of the defendant in mitigation.  On the issue of drugs for own use, the Defence has not put forward any assertion and/or evidence on the quantity for own use.  The Prosecution takes a neutral stance on this issue. 

I have considered the decision in Chow Chun Sang, in which HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 was considered, and the range of factors for determining the issue of drugs for own use set out in Wong Suet Hau.

12.I note that the subject drugs were wrapped in plastic wrappings in the form of 60 pellets and packed in two re-sealable plastic bags and the defendant has 7 previous records of possession of a dangerous drug. Given the defendant’s drug taking history, drug related convictions and the way in which the drugs were packed, I am prepared to accept the suggestion that some of the drugs may be for own use. 

13.However, possession of drugs carries a sentence in any event.  The latent risk of the drugs for own use finding their way to the hands of others certainly existed.  I am satisfied that the starting point should be reduced by 6 months to one of 39 months.  I don’t find any other mitigation factors justifying a reduction. 

14.Giving full credit to the defendant for his guilty plea, I sentence him to a term of 26 months imprisonment.