HKSAR v. Ng Yiu Fai

DCCC 867/2017

[2018] HKDC 217

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 867 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of trafficking in a dangerous drug, particulars of which are that on 5 July, he trafficked in what was 3.32 grammes of heroin hydrochloride.

2.Facts are straightforward, have been agreed, essentially a stop-and-search case taking place on the morning of 5 July 2017 in Nam Cheong Street in Sham Shui Po.  Defendant was seen to act suspiciously and stopped by the police.  Upon search, some 30 pellets of plastic wrappings containing what was the dangerous drug were found in a plastic bag inside the right front of the defendant’s trousers.  The narcotic content of the mixture was 3.32 grammes of heroin hydrochloride.  On arrest, the defendant claimed it was for his own consumption. 

3.That was reiterated in a subsequent cautioned video-recorded interview, he again saying the drug was for his own consumption that he had bought at a bulk discount from a person called Ah Wai.  He, however, did not know Ah Wai’s name, address or contact information.  Defendant did say he consumed three to four pellets of heroin per day and spend about $300 on them per day if he had the money, and at the time, he was going to Nam Cheong Park to consume the heroin that he had purchased.

4.The total street value of the heroin was found to be $3,302.  The defendant himself admitted he was unemployed and reliant upon comprehensive social security assistance of about 4,000 cash.

5.The defendant admits in these facts that he was in possession of the drugs for the purpose of unlawful trafficking in them.

6.The defendant has a substantial criminal record involving 26 previous convictions, 11 of which are drug-related and some 5 of which involved him in the trafficking of a dangerous drug, the most recent being on 27 August 2012 when the defendant was convicted of trafficking in a dangerous drug and sentenced for that to 7 months’ imprisonment.  And the defendant has been to prison, has been to drug addiction treatment centre on a number of occasions, and most recently, he was in a treatment centre following his conviction on 6 June 2016 for possession of a dangerous drug and possession of the apparatus for consuming it. 

7.His antecedent statement shows that he is aged 40 now, has been a drug addict since 15 years old - that is borne out by his criminal record - and was last discharged from the Lai Sun Correctional Institution on 25 October 2017.

8.In mitigation, defendant points to the fact that he is a habitual drug user and has been since a teenager, and he says support for that can be seen firstly in his conviction record and the number of times he has been convicted of possession of dangerous drug and the fact that he has been sent to a drug addiction treatment centre in the past.  Obviously, the treatment so far has not been successful for him. 

9.He has pleaded guilty and he shows remorse. In mitigation, it is said that the quantity of drugs would be towards the lower end of the guideline sentence, that he would ask for his self-consumption of the drug to be taken into account.  The amount of drug referred to in his record of interview is that he consumed some three to four pellets daily to a value of some $300, and it would be his case that he would consume a significant portion of the drug he was found to be in possession of and obviously would be also selling that drug to support his own drug-trafficking habit.

10.There is also support for this in the test result, urine test report on his admission into Lai Chi Kok Reception Centre on 6 July 2017 when he was found to be positive for opiates and also amphetamine.  

11.In the approach to sentence, it can be found in the guideline sentence case of Lau Tak Ming which is Cr App No. 230 and 269 of 1989 which sets out the operative guidelines and starting points for the offence of trafficking in a dangerous drug.  That is trafficking in heroin hydrochloride.  The quantity we are dealing with today is 3.32 grammes of heroin hydrochloride which falls within the first band of the tariff of up to 10 grammes of narcotic which is 2 to 5 years’ imprisonment.  So the possession of any quantity of the drug for trafficking can lead to a sentence of between 2 to 5 years’ imprisonment.  Here we have a quantity of 3.32 grammes which would put it towards the lower end of that band of sentencing.

12.I have determined that based on quantity alone, the appropriate starting point for sentence would be one of 30 months’ imprisonment.  There is in fact an aggravating factor in this case and that is the defendant’s previous convictions for trafficking.  There are a total of five and one as recently as 2012.  I do consider that they are an aggravating factor and must lead to that starting point for sentence being increased.  I increase it by 6 months to 36 months’ imprisonment.

13.The defendant prays in aid a mitigating factor. That is his self-consumption of the drug.  There is evidence in the record of interview that he would have consumed the quantity I have already set out, three to four pellets.  There is clear evidence on his background that he is a long-term hardened addict to this drug.  It does appear to me that were the defendant in a position to do so, he would have consumed a significant portion of that drug to support his own habit whilst also selling off drugs to support the habit in the same way, financially support his habit. 

14.There is an authority to say that a deduction from the starting point for sentence of between 10 to 25 per cent of the original starting point can be given to a defendant if it is found that he would consume a significant portion of the drugs for his own consumption.  Of course, determining what that proportion is is a matter of speculation and it depends on a number of factors which are not and cannot be assessed at this stage of proceedings.  The defendant obviously would consume a quantity himself.  He has a serious addiction.  But I consider that he would also have sold a significant portion of the drug himself. 

15.What I shall do is take a deduction in the region of 10 per cent for the defendant and I shall reduce his sentence by 3 months for the fact that he would have consumed some of the drug himself.  That leads to a starting point for sentence now of 33 months’ imprisonment.  The defendant is entitled to a one‑third discount from that sentence which leads to a final sentence by my calculation of 22 months’ imprisonment, and that is the sentence I will impose, one of 22 months’ imprisonment.