HKSAR v. Cheung Ka Keung

DCCC 356/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 356 OF 2017

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Reasons for Sentence

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Charge and facts

1.D pleads guilty to a charge of trafficking in dangerous drugs.  

2.At around 0900h on 20/1/2017, the police found D acting furtively outside Yuen Long Methadone Clinic and intercepted him for enquiry. He took out something from his trousers and put it into his mouth and tried to swallow.  As requested by the police, D disgorged it to reveal two resealable transparent plastic bags containing a total of 39 pellets of heroin.  His shoulder bag contained three packets containing 29 tablets of midazolam.  There was also another resealable plastic bag.  The drugs seized were found to be 5.71 grammes of a mixture containing 4.70 grammes of heroin hydrochloride and 29 tablets containing 0.44 gramme of midazolam. 

3.Under caution, he admitted that the drugs he tried to swallow was heroin. He intended to wait outside Yuen Long Methadone Clinic to sell the heroin and the midazolam for profit.  Part of the cash (agreed to be $750 by the prosecution and the defence) of $2,120 seized from him was the sales proceeds for 6 pellets of heroin reaped there before arrest.  He was a drug addict and would take heroin and midazolam three times a day. 

Mitigation

4.He is 44 years of age, of F. 2 education level, and unemployed at time of arrest. He had a previous record for drug trafficking in 1994.  There were simple possession records throughout his history.  That seems to support his claim today that a small part of the drugs seized was for his own consumption.  The exact quantum would depend on the business of the day, though.   

Sentencing guidelines

5.For heroin trafficking, it is 2 – 5 years for up to 10 grammes according to R v Lau Tak-ming [1990] 2 HKC 370. 

6.For midazolam, it is up to 6 months for up to 500 mg (or 0.5 gramme) according to HKSAR v Yui Chi-wai HCMA 624/1997 following R v Chan Chi-man CAAR 19/1986. 

7.The Court of Appeal in HKSAR v Chow Chun-sang [2012] 2 HKLRD 1116 indicates that where the court is satisfied that a part or the whole of the drug was for the defendant’s own consumption, the basic starting point may, depending on the circumstances of the case, be adjusted downwards by 10 – 25%.  

Sentencing the Defendant

8.He was planning to sell the drugs at the methadone clinic and had actually sold some there before arrest.  Such convenience to the drug addicts was a grave temptation and would upset their regime of methadone treatment.  I take a basic starting point of 3 years 4 months.  It is probable that he intended to have a small part of the drugs for his own consumption.  So I take an actual starting point of 3 years.  One-third off for his timely plea of guilty, the sentence is 2 years. In addition, I impose a fine of $750 to deprive him of the proceeds of crime.