HKSAR v. Tsang Fuk Ming

DCCC 10/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 10 OF 2017

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Reasons for Sentence

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

2.The particulars are that on 5 November 2016, he unlawfully trafficked 27.9 grammes of a mixture containing 23.1 grammes of heroin hydrochloride.

3.The facts of this case are very straightforward.  On that day at about 11 pm, some police officers noticed the defendant acting furtively outside No 39 Tai Kok Tsui Road.  They intercepted the defendant and searched him.  They found that quantity of heroin in one transparent resealable plastic bag in his left front shorts pocket.

4.Under caution, the defendant said that the heroin was for his own consumption.  Later, again under caution, he elaborated and said he had bought that amount of drugs from a male for $7,300, and if he bought in bulk, he got a discount.  He told the police that he was a heroin abuser.

5.It is agreed that the street value of that amount of heroin was approximately $15,700‑odd.

6.A house search of the defendant’s home was made, with nothing incriminating found.

7.His best mitigation is his plea of guilty today.

8.The defendant is 66 years old, single, with no immediate family in Hong Kong.  He has been unemployed for a while, and on public assistance since the year 2000.  I have been told he is a heroin abuser and has been since he was 35 years old.

9.The defendant is not a man with a clear record; he has 17 previous convictions, of which two are trafficking in dangerous drugs convictions, the last one being in April 2013.  For that offence he was sentenced to 3 years and 8 months by the District Court.  In addition, he has eight convictions for possessing dangerous drugs.  His first such conviction was back in 1989.  He has a long history of drug abuse.

10.For trafficking heroin there are guidelines the court will follow, and those are set out in R v Lau Tak Ming and Others [1990] 2 HKLR 370.  Where between 10 to 50 grammes of heroin is involved, a starting point of between 5 to 8 years would be appropriate.

11.In this case, the 23.1 grammes of heroin hydrochloride would attract a starting point of about 5 years and 9 months, but there is an additional mitigating factor that is not challenged:  the defendant would have consumed some of the heroin himself. There is no dispute he is a long-term drug addict, and I accept that some of the heroin here may have been for self‑consumption.  The Court of Appeal has said that a discount of between 10 to 25 per cent can be considered if that mitigating factor is presented and accepted.  How much of a discount is appropriate will depend on each case and its own facts.

12.I have taken into account this principle from the authority of HKSAR v Chow Chuen Sang [2012] 2 HKLRD 112.  Here, I take into account the quantity, the defendant’s background, mitigation, and the fact that this is his third trafficking conviction.

13.Defendant, please stand up.  I also take into account your plea of guilty and everything said on your behalf.  I will take a starting point of 5 years and 3 months.  Having accepted the fact that not all of the drugs were for trafficking and some would have been for self-consumption, I will reduce that starting point by a further 12 months. That will be a discount of just under 20 per cent.  Therefore, the starting point becomes one of 4 years and 3 months.

14.You have pleaded guilty, and for that, you are entitled to a discount of one-third.  That is a discount of 17 months.

15.After that discount is applied for your plea for this offence, you are sentenced to 2 years and 10 months’ imprisonment.  Do you understand the sentence?

DEFENDANT: Understood.