HKSAR v. Tan Poh Chye

DCCC 1149/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1149 OF 2016

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Reasons for Sentence

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1.The Defendant pleads guilty to trafficking in a dangerous drug. At about 9:47 am on 19 October 2016, the police stopped and searched him near the jade market at the junction of Tung Chau Street and Nam Cheong Street, Sham Shui Po. He produced a Form 8 Recognizance as his identity document.

2.In his trouser pocket were 35 packets of substance, a total weight of 5.54 grammes containing 4.11 grammes of heroin hydrochloride.

3.The estimated value of the drugs seized was $4,160.54. 

4.He told the police that the drugs were for his own consumption.  He came from Singapore in early 2012.  He had been a street-sleeper at Nam Cheong Park since December 2015.  He used $5,250 to buy the drugs, each pellet at $150 a few minutes ago nearby.    He had been a drug addict for 30 years.  He would consume 2 pellets each day.  He received $210 cash per month plus supermarket vouchers from the International Social Service.  His elder sister in Singapore also remitted money in the sum of SGD1,000 or up to SGD 2,000 when he needed it.  He bought the drugs seized with such money. 

5.I am told in mitigation that he is 52 years of age.  He was born in Singapore. He applied for asylum seeker status in Hong Kong in 2012.  He lives on the allowances for asylum seekers, supplemented by remittances from his siblings. Unfortunately, before the time of the offence, the remittance had lapsed.  He was driven to committing the present offence.  He intended to sell the drugs in question.  

6.He had 2 records for possession of drugs.  He was sentenced to imprisonment in 2014 and 2016 respectively. 

7.The starting point for trafficking in heroin of up to 10 grammes shall be 2 – 5 years according to R v Lau Tak-ming [1990]2 HKC 370.

8.It shall be an aggravating factor in the sentence of a defendant, who being an asylum seeker, committed an offence affecting the community at large and having a significant impact on Hong Kong’s reputation.  Drug trafficking is regarded as one of such offences.  The case in point is HKSAR v Sandagdorj Althankhuyag [2014] 1 HKC 206, later applied in HKSAR v Norena Gutierrez Christhian Andres CACC 319/2014.  In HKSAR v Shah Syed Arif CACC 298/2015, the Court of Appeal adopted an increase of about 10% in this connexion. 

Sentencing this Defendant

9.For the quantity of drugs, I adopt a basic starting point of 3 years.  I add 3 months onto it for his being an asylum seeker who committed such offence affecting the community at large and having a significant impact on Hong Kong’s reputation.  I give him one-third discount for his timely plea of guilty.  The sentence is 26 months.