HKSAR v. Ct Tu Bao Gong

DCCC 529/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 529 OF 2017

--------------------------

--------------------------

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

1.The defendant pleaded guilty to a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, namely, 12.41 grammes of a mixture containing 9.92 gramme of heroin.

Summary of facts

2.On 13 March 2017, at around 7.18 pm, PW1 noticed the defendant looking around furtively with her right hand pressing on the right pocket of her jacket.  The defendant was intercepted for a search. 

3.From the right pocket of her jacket:-

(a) one transparent resealable plastic bag containing 30 packets, a total of 4.56 gramme of a mixture containing 3.64 grammes of heroin;

(b) one transparent resealable plastic bag containing 30 packets, a total of 7.85 grammes of a mixture containing 6.28 gramme of heroin.

4.The defendant was arrested for trafficking in a dangerous drug.  Under caution, she said that the white powder was for her own consumption.  At the time of arrest, she also had $260 of cash and a mobile phone.

5.In a subsequent video record of interview, the defendant said under caution that:-

(a) at around 6 pm on that day, she paid the seller $7,000 for 14 grammes of heroin;

(b) the two bags of heroin consist of 60 packets: 30 packets each containing 0.3 grammes of heroin and the other 30 packets each containing 0.2 grammes of heroin;

(c) the defendant intended to inhale the heroin inside a female toilet in Shek Kip Mei Estate;

(d) she said that she started to take drugs since 20-odd years of age. Her daily consumption was two to three white packets of heroin;

(e) she was unemployed and homeless and was not a CSSA recipient. The money she used to purchase the heroin was inherited from her late mother.

6.The street value of the drugs is about $8,848.33.

7.At the material time, the defendant unlawfully had all the drugs in her possession for the purpose of trafficking.

Previous conviction

8.Between 2005 to 2016, the defendant had four court appearances with four charges.  Three are related to dangerous drugs:  two were possession of dangerous drugs and one is trafficking dangerous drugs in 2007, of which she was sentenced to 50 months’ imprisonment.  Her last conviction was in 2016, of which she was sent to DATC in March 2016.

Mitigation

9.The defendant is now 42 years of age.  Her mother and father passed away in 2005 and 2015 respectively.  Her husband committed suicide in 1999 due to heavy gambling debts.  Their son was only 3 years old at that time.  The defendant started to take drugs to release her emotional pressure.  In 2001 she came to Hong Kong with her two brothers for family reunion with her family. She stopped taking drugs when she settled down in Hong Kong.  She relapsed to take drugs again because of the death of her mother in late 2015. 

10.In her own mitigating letter, she is now remorseful.  She asked for lenient sentence so that she can be reunited with her new-born daughter who was born during her period of remand in September this year.  Her daughter is now being looked after by her family members. 

11.The defence also said that half of the drugs was for her consumption and subsequently withdrew this mitigating factor.

Sentence

12.In mitigation, the defence at one stage advanced on the ground that half of the drugs was for her consumption.  Later, it was changed to part of the drugs only, without specifying the amount. 

13.The prosecution disagreed, mainly because she admitted in the summary of facts that all the drugs was for the purpose of trafficking.

14.The defence told this court that $7,000, as admitted in the summary of facts, was in fact the money left by her late mother in 2015.  At that time, there was a total of $80,000.  The defendant was sentenced to DATC between March to September 2016.  At the time of her release from DATC, she claimed that she still had $30,000 to keep her going to the time of arrest in March 2017.  That means each month she only has about $5,000 to spend, but she also admitted under caution that she was unemployed and she was homeless, she was pregnant at the material time. 

15.In mitigation, the defence said that she paid for her 21-year-old son a rental deposit of $4,400 and she used the remaining $7,000 to purchase the drugs in question. 

16.I found her source of the $7,000 was totally incredible.  It is simply unbelievable that the $30,000 could support her living for six months, bearing in mind she started to take drugs again in December 2016 and that was three months prior to her arrest. 

17.In the end, the defendant withdrew her self-consumption mitigating factors. 

18.The defendant admitted trafficking of heroin.  That applicable sentence guideline is R v Lau Tak Ming & Ors [1990] 2 HKLR 370:  up to 10 grammes is 2 to 5 years. 

19.In the present case, the narcotic quantity of the heroin involved is 9.92 grammes. 

20.I therefore adopt a starting point of 4 years and 9 months, reduced to 3 years and 2 months because of the defendant’s guilty plea.