HKSAR v. Ching Oi Kam, Dickey

DCCC 1042/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1042 OF 2016

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

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

2.The particulars of the offence show that it occurred on 27 August 2016 and involves 21.2 grammes of heroin hydrochloride.  That is the narcotic content.

3.The facts are very simply stated.  The seizure of the heroin occurred as the result of a stop and search of the defendant. This occurred in the evening of 27 August 2016 on the street in Sham Shui Po.

4.What was seized from the defendant was a small cube of white powder that contained the 21.2 grammes of heroin hydrochloride. The street value of that quantity of drug was $23,885.

5.The defendant immediately said that was for his own consumption.  He later told police in a video‑recorded interview that he had purchased that drug for $10,000 and intended to consume it.  It would last him about 30 days.  For the average consumption by a heroin addict, the drug should last between 30 to 85 days.

6.The defendant does accept that he possessed those drugs for the purpose of unlawful trafficking in them.

7.The defendant’s antecedents record shows that he is aged 41.  He has been working as a transportation worker.  He has a number of previous convictions, 28 in total; 22 appearances in court.  A number of them relate to dangerous drugs, both possession of the drug and trafficking in it.  There are least 4 convictions that relate to trafficking.  In 2002, the defendant was keeping a divan and trafficking in drugs.  He received a total of what appears to be 36 months’ imprisonment; in 2007, a further offence of trafficking in dangerous drugs, for which he received 16 months’ imprisonment; in 2008, a further 16 months for trafficking in dangerous drugs; and finally, in 2011, a total of 8 years for trafficking in dangerous drugs, from the High Court.  So the defendant does have a number of trafficking convictions of a serious nature.

8.He also has offences involving the possession of dangerous drugs, and he states before the court that he is a drug addict. There would appear to be ample support for the proposition that the defendant is a drug addict.

9.As far as the mitigation is concerned, the defendant prays in aid his plea of guilty.  He says that as far as the drug that was in his possession was concerned, he would use some of that drug for his own consumption and also share the drugs with friends.  The defendant asked the court to consider that some of the drug was for his own consumption and reflect that in the starting point for sentence.  In support of that proposition, the defendant says he has been a drug addict for 14 years. We can see from the criminal conviction record he has been to the drug addiction treatment centre at least three times between 1997 and 2006.  It is said from this that the defendant clearly must be a drug addict.

10.The approach to sentence will be as follows.  As far as the determination of starting point for sentence, that must be largely governed by the quantity of drug the defendant is in possession of.  The sentencing guideline is contained in the case of R v Lau Tak Ming [1990] HK Cr App 96.  The quantity here to be considered is 21.2 grammes of heroin hydrochloride, which falls within the guideline range of 10 to 50 grammes, where the starting point for sentence should be between 5 to 8 years’ imprisonment.

11.It would appear that the figure itself would place it towards the lower end of that guideline.  I consider an appropriate starting point at this stage to be 5 years and 6 months’ imprisonment.

12.There is an aggravating factor to consider, and that is the defendant’s previous convictions for trafficking in dangerous drugs.  They are of a serious nature, and there are four previous occasions of trafficking, and these illustrate the failure of deterrent sentencing in the past.  I consider that this should be reflected in a further 6 months’ addition to the starting point to reflect that aggravating factor, which brings the starting point now to 6 years’ imprisonment.

13.It is of course the case that as far as mitigating factors, the court can take into account the fact that some of the drug would be for the defendant’s own consumption.

14.The Hong Kong appeal case HKSAR v Chow Chun Sang [2011] HKCA 420 established, together with other cases, that where part of the drug is intended for the defendant’s own consumption, and that is a significant portion of the drug, then the ensuing discount to sentence could, or should, depending on circumstances, fall between 10 to 25 per cent of the basic starting point.

15.Given the defendant’s long-term drug addiction, his previous failed attempts to rid himself of the addiction in the drug addiction treatment centre, and the clear indication of the defendant on arrest that he was consuming part of the drug, it means the court can determine that part of the drug would be for the defendant’s own consumption, and I can reach that conclusion without further evidence.

16.It is clear that it is very difficult for the court to determine what quantity would be consumed, and the defendant can simply say that he would consume it over a period of time, so any calculation must, to a certain extent, be speculative.

17.What I shall do is take a figure that is over the 10 per cent, which would lead to a deduction in this case of 9 months’ imprisonment from the basic starting point of 72 months.  That gives a reduced starting point for sentence now of 63 months’ imprisonment.

18.The defendant has always indicated a plea of guilty in this matter.  He is entitled to a one-third discount from that, and that is a further 21 months’ deduction, which leads to a final sentence of imprisonment of 42 months’ imprisonment for this offence.