HKSAR v. Wong Yiu Fai

DCCC 767/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 767 OF 2017

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REASONS FOR SENTENCE

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1.The defendant (Wong Yiu Fai) was intercepted by the police officers outside his residence in Ching Yuet House on the 3 June 2017. With the key found on him and also armed with a search warrant earlier secured from a Judge, the police escorted the defendant back to his residence for a search. In the apartment, the police found one large bag of heroin and nine smaller packets, with each of the latter containing less than 1 gramme of the same substance. The police also found a large number of bags containing powder which was not a controlled substance. In addition, the police also found 146 tablets of midazolam. Other items of interest found by the police included empty plastic bags, an electronic scale, a pair of scissors and cash in the total sum of $24,000. The prosecution contended that the paraphernalia found in his place was for repackaging the dangerous drugs for sale.

2.Under caution, the defendant contended that part of the dangerous drugs were for his own self-consumption. 

3.Subsequent examination by the government chemist confirmed that the heroin and its purity is 21.83 grammes in total.  The 146 tablets contained 2.24 grammes of midazolam.  He is charged with one count of trafficking in dangerous drugs.

4.In addition, the defendant is also charged with possessing the two pieces of tinfoils found in his place which he admitted to be used for his own consumption. 

5.He is convicted of both counts upon his plea and admission of facts.

6.Trafficking in heroin is a rampant offence, and the Court of Appeal has set out very clear guidelines.  For 10 to 50 grammes, it falls within the 5 to 8 years’ imprisonment.  The proper sentence for this case should be 70 months.

7.In respect of the tablets of midazolam, I am going to adopt a global approach and add 2 months to the total.  So the starting point should be 72 months.

8.I turn to consider other mitigating circumstances.  The defence contend that under caution that part of the dangerous drugs was for self-consumption.  If accepted, the court has a discretion to give a further reduction in the final sentence. 

9.I turn into the defendant’s financial circumstances.  He was 40 years old.  According to the antecedent statement, at the time he was not employed. I also note that inside the premises, the police found quite a substantial sum of cash.  In my view, there is no evidence for me to justify the exercise of discretion to order an additional deduction. 

10.The defendant is a mature man.  He has been taken to the court two times, for which he was convicted of a total of four offences, three of which were related to dangerous drugs.  In all, he had been sentenced to DATC twice. With his background, I do not see any reason to exercise my further discretion of clemency.  The only valid mitigating factor is the fact that he pleaded guilty, and in accordance with the Court of Appeal direction, I will give him the usual one-third discount.  So for the 1st charge, he is sentenced to 48 months’ imprisonment.

11.As to the 2nd charge of possession of apparatus, there is no sentencing guideline.  In view of the fact that he has been sentenced to 48 months in respect of the 1st charge, I will sentence him for 2 months’ imprisonment.  That is by adopting a starting point of 3 months and reduced to 2 months by reason of his plea.  The two sentence order is run concurrently.

12.In all, he is to serve a term of imprisonment for 48 months.