HKSAR v. Chu Cho Yam

DCCC 559/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 559 OF 2017

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Reasons for Sentence

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1.The defendant pleaded guilty to one count of trafficking in a dangerous drug. Particulars of the charge are that he on 28^th March 2017 unlawfully trafficked in 8.77g of heroin hydrochloride at the junction of Nam Cheong Street and Hai Tan Street in Sham Shui Po.

Summary of facts

2.The defendant was intercepted at around 6:20pm by plainclothes Police officers who found the defendant’s behaviour suspicious. Upon the officers revealing their identity, the defendant immediately started to run. The officers gave chase and managed to stop the defendant quickly.

3.3 transparent resealable plastic bags, each with a red-rim, were found from the defendant’s right front trousers pocket. Each of the plastic bags contained 30 packets in yellow plastic wrappings of suspected dangerous drugs. There were, therefore, 90 packets in total.

4.The defendant was arrested for the offence of trafficking in dangerous drugs. Under caution, the defendant claimed that the ‘number 4’ were for his own consumption.

5.Subsequent analysis of the substances by Government Chemist confirmed that the 90 packets contained a total of 13.53g of a mixture, which in turn contained a total of 8.77g of heroin hydrochloride.

6.At a later video recorded interview, the defendant claimed that he bought the drugs from a man at a public park on Nam Chueng Street for $9,000 just 20 minutes before he was stopped by the Police officers. He was on his way back to his resting place under the flyover on Tung Chau Street. He bought a large quantity in order to minimize the trouble of further purchase.

7.The defendant had 5 telephones on him when he was arrested. He said 3 of them were not working and he kept them for sentimental value. The other 2 were for his usual usage.

8.Only one $5 coin was found on the defendant at the time of his arrest.

9.The defendant did not have a fixed place of abode. He had previously worked as a freelance decoration worker with irregular income.

10.The total retail value of the drugs in this case as at March 2017 was $6,253.

11.At paragraph 15 of the summary of facts, which the defendant had agreed to in court, it is stated that the defendant admits to commission of the offence of trafficking in dangerous drugs as particularized in the charge sheet.

Previous convictions

12.In the period from March 1992 to August 2016, the defendant has 10 previous convictions for possession of dangerous drugs. He was convicted for trafficking in dangerous drugs once, and that was in March 2008, more than 9 years ago.

13.There had been no criminal convictions of any kind from 2008 until August 2016. His last conviction was for possession of dangerous drugs on 16^th August 2016 when he was sentenced to 4 months’ imprisonment.

Mitigation

14.The defendant is 40. He was educated up to Form 2 level in Hong Kong. His parents are retired. The defendant had a girlfriend with whom he had cohabitated for 14 years. She left him in August 2016.

15.Ms Ho for the defendant inform the court that the defendant worked as a casual painting technician with a daily wage of $1,200. He was earning around $12,000 to $15,000 a month.

16.The defendant has been a drug addict since he was 16. He suffers from skin ulceration on his legs and cannot walk properly. This was caused by the impurities of the drugs that he had been taking. He needed to have his wound cleaned daily before he was detained in Lai Chi Kok reception centre.

17.Ms Ho pointed out that the defendant had cooperated fully with the Police and that he did not resist, despite the fact that the defendant provided no information on the person who sold him the drugs and he did try to run away as soon as the Police officer who intercepted him revealed his Police identity.

18.At first, it is the defendant’s case that around one-third of the heroin in his possession on that day were intended for his own use. Later on he clarified through his legal representative that he could not quantify his usage, but that it was a small quantity. He would spend up to $9,000 on drugs every month.

19.The defendant claimed that he had committed suicide by the injection of midazolam in August 2016 when his girlfriend left him and he found out that both his mother and his aunt had cancer. The defendant was in a coma and was sent to Tuen Mun Hospital.

20.The defendant did survive and was sentenced to jail for the possession of the midazolam and sentenced to 4 months in jail.

21.After his latest release from jail, the aunt had passed away. The defendant did not want to live with his parents. Since his girlfriend had left him, he had nowhere to stay and so he slept underneath a flyover.

22.The defendant had not taken drugs in the last 6 months. He asks for leniency so that he can be re-united with his family and look after his ageing parents.

Sentencing guidelines

23.Sentencing guidelines for trafficking in heroin hydrochloride are found in the case of R v Lau Tak Ming, CACC230/1989. The range of sentence for trafficking in up to 10 grammes of narcotic is that of 2 to 5 years’ imprisonment.

Sentence

24.For 8.77g of heroin hydrochloride in our present case, an arithmetical application of the said guidelines would lead to an initial starting point of 55.5 months’ imprisonment. This is the starting point I will adopt.

25.Although the defendant has multiple previous convictions relating to dangerous drugs, all but one was for simple possession. The only conviction for trafficking was more than 9 years ago in 2008. Between the period of March 2008 and August 2016 the defendant had not been convicted of any criminal offence.

26.I will not take his previous conviction records as an aggravating factor.

27.As for mitigating factor, I find that I do not accept that the defendant was in possession of a ‘significant proportion’[1] of the drugs for his self-consumption for the following reasons.

28.The defendant is a long term drug addict who suffers from skin ulceration. His lawyer told the court that he had to have his wounds dressed daily and that as a result of the ulceration he is not able to walk properly.

29.It is inherently improbable that someone in his condition would be able to command a daily wage of $1,200 as a painting worker and be earning $12,000 to $15,000 a month.

30.There were 90 packets of drugs found on the defendant. Despite having no fixed abode and being only a casual worker (if that was the case), the defendant had 5 mobile phones on him. Even if 3 of them did not work, I find that the defendant must have been using the mobile phones in connection with his trafficking activities.

31.There is evidence that the defendant had been, and is, a drug addict, but based on the above observations, I find that it is not the case that a significant proportion of the heroin found on him was for his self-consumption, and I refuse to grant him any discount on that basis.

32.Before the decision was made to not accept what was put forward on behalf of the defendant, he was invited by the court to consider whether he would like to enter the witness box to give evidence on the usage of the drugs found in his possession. The defendant declined the invitation.

33.I would just like to add that, even if one-third of the drugs were for the defendant’s self-consumption, given the criminal record and quantity of heroin, I would have imposed a sentence of 18 months’ imprisonment for the 2.93g of heroin (being 1/3 of 8.77g) supposedly for self-use. For the balance of 5.85g of heroin, the guideline sentence for trafficking in that quantity would be 45 months’ imprisonment.

34.Even without enhancing the sentence for the simple possession for latent risk of re-distribution, the resulting sentence would end up being much higher than the starting point that I have adopted.

35.There is, however, one mitigating factor and that is the defendant’s timely plea of guilty. He is granted the full one-third discount and sentenced to 37 months’ imprisonment.