HKSAR v. Wong Yiu Chung and Another

DCCC 1140/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1140 OF 2016

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REASONS FOR SENTENCE

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1.There are two defendants in this case. The 1^st defendant pleaded guilty to one charge of “Trafficking in dangerous drugs”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The dangerous drugs involved are 14.73 grammes of a mixture containing 11.49 grammes of heroin hydrochloride and 10 tablets containing 0.15 gramme of midazolam (Charge 1). The 2^nd defendant pleaded guilty to one charge of “Trafficking in a dangerous drug” and the dangerous drug involved is 14.70 gramme of a mixture containing 11.40 grammes of heroin hydrochloride (Charge 2).

Summary of facts

2.On 1 September 2016 outside Mei Choi House, Shek Kip Mei Estate, Sham Shui Po, Kowloon, the two defendants were found acting furtively with their hands pressing on their shorts’ pockets.  As a result, they were intercepted by the police.  On the 1^st defendant, the police found in his right front short’s pocket a total of 60 re-sealable plastic bags containing a total of 11.49 grammes of heroin hydrochloride and 10 tablets containing 0.15 gramme of midazolam.  Whereas on the 2^nd defendant, the police found in the right front pocket of his shorts 30 re-sealable plastic bags containing a total of 11.40 grammes of heroin hydrochloride.

3.Under caution at scene, the 1^st defendant said that the drugs were bought for his own consumption.  In the subsequent video-recorded interview, the 1^st defendant further admitted that he bought the heroin at

bulk purchase price at HK$7,500 and the 10 tablets of midazolam at HK$100 on the same day from a man named “Ah Wai” at Tai Hang Tung

Estate. He said he is a drug addict and has been receiving CSSA of $2,000 per month. The $5,300.5 cash found on him was the CSSA money he received and was unrelated to the present case.

4.Concerning the 2^nd defendant, he also admitted at the scene under cautioned that the dangerous drug found on him was for his own consumption.  During the subsequent video-recorded interview, the 2^nd defendant further admitted that he purchased the 30 packets of heroin at HK$9,000 from “Ah Wai” at Tai Hang Tung Estate on the same day.  He said he was unemployed at the material time and he used to work as a construction site worker.  He said he bought the drugs with his savings for his own consumption.  He said he consumed 2 packets of heroin every day.

5.The street value of the heroin and midazolam found on the 1^st defendant was estimated to be around HK$11,754.54 and HK$570 respectively while the street value of the heroin found on the 2^nd defendant was estimated to be around HK$11,730.60.

6.Both defendants now admit that they possessed the said dangerous drugs for the purpose of unlawful trafficking.

Mitigation

7.The 1^st defendant is now aged 37, single and unemployed.  He lives with his girl-friend and their 1-year-old son.  He has 12 previous convictions, most of them are drug-related in which 5 of them are drug

trafficking convictions. He is receiving CSSA at $3,800 per month with his girl-friend and sometimes he works as a part-time delivery worker.

8.The 2^nd defendant is aged 50.  He is married with two adult daughters but has been separated with his wife for years.  He has altogether 21 previous convictions in which 4 are possession of dangerous drugs and only one is drug trafficking.  He works as a construction site worker earning HK$500 per day.

9.In mitigation, solicitors acting for both defendants submitted that both defendants are remorseful and they pleaded guilty at the first available opportunity.  They asked the court to give both defendants a full one-third discount.  They also submitted that both defendants are drug addict and about one-third of the seized drugs was for their own consumption.  They urged the court to give both defendants an extra discount for this reason.

Sentence

10.There should not be any dispute that “drug trafficking” is a serious offence. Any person who commits this offence should be under no illusion that the court will deal with him/her leniently and one should expect to be punished by long-term imprisonment even for fresh offenders.  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 hydrochloride, the sentence ranges from imprisonment of 5 to 8 years.

11.The 1^st defendant trafficked in 11.49 grammes of heroin and 0.15 gramme of midazolam in the present case.  Given the very small quantity and comparatively less potent nature of midazolam found on him, I consider the appropriate overall starting point should be 5 years, ie 60 months’ imprisonment.  The 2^nd defendant trafficked similar quantity of heroin of 11.40 grammes so I think the same starting point should be adopted for him as well.  The prosecution does not take issue and I accept that at least part of the drug found on the two defendants was for their own consumption. According to HKSAR v Chow Chun Sang, CACC 135/2011, unrep., the court should give a discount of 10% to 25% in sentence if the court is satisfied that all or part of the drugs are intended for the trafficker’s own consumption.

12.In the present case, there is evidence that both defendants are drug users and they both have numerous drug-related convictions.  Taking into account of the fact that the drugs found on them were not of very large quantity, I accept that it is possible that at least part of the drugs was intended for their own consumption.  Accordingly, I will give both defendants a 15% discount in sentence.

13.Base on the above reasons, for both charges 1 and 2, I adopt 60 months’ imprisonment as the starting point.  As part of the drugs was for self-consumption, I give both defendants a discount of 15%.  I further give them a one-third discount for their guilty pleas.  Therefore, for charge 1, the 1^st defendant is sentenced to 34 months’ imprisonment.  For charge 2, the 2^nd defendant is also sentenced to 34 months’ imprisonment.