HKSAR v. Hau Wai Keung

DCCC 89/2018

[2018] HKDC 907

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 89 OF 2018

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 28.0 grammes of a mixture containing 23.4 grammes of heroin, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.Full particulars of the offence are set out in the facts admitted by the defendant on 27 July 2018.  In summary at around 8:30 p.m. on 20 November last year PC 14153 intercepted the defendant outside No. 108 Portland Street in Yau Ma Tei.  PC 14153 found inside the defendant’s left front trouser pocket a piece of newspaper wrapping a transparent re-sealable plastic bag containing the heroin.    

Mitigation

3.In passing sentence, I have carefully considered everything said on behalf of the defendant by Ms Kam together with the defendant’s mitigation letter and a letter written by his close friend both of which say the defendant is remorseful. 

Starting point

4.In R v Lau Tak Mingthe Court of Appeal laid down guidelines for trafficking in heroin.  Where the quantity of narcotic is between 10 and 50 grammes sentence falls within the range of 5-8 years’ imprisonment[2]. 

5.I am satisfied the appropriate starting point for 23.4 grammes of heroin is 6 years’ imprisonment.

Own use

6.The defendant told the police the heroin was for his own consumption.  Ms Kam tells the court that the defendant has been a drug addict since he was twenty.  The defendant claims 10% of the drugs were for his own consumption and the rest would be sold to his friends.

7.The prosecution having considered the defendant has previous convictions for possession of drugs have no objection to the claim that 10% of the drugs were for his own consumption.      

8.Taking into account the defendant has been to the DATC in 1995, 1998 and more recently in 2016, I am prepared to accept that 10% of the heroin may have been for his own consumption.

9.In deciding how much weight should be attached to the fact some of the heroin may have been for own consumption, I have considered the decision in HKSAR v Wong Suet Hau[3], in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang[4]. 

10.In Wong Suet Hau the Court of Appeal said that in most cases the difference will be slight[5].  From the decided cases a discount of between 10-25% from the basic starting point has been held appropriate where a significant proportion of the drugs were for own consumption. 

11.Ms Kam asks that I give a discount of between 10-25%. A 10% discount from the basic starting point would result in a starting point of about 5 years and 5 months’ imprisonment which is appropriate for trafficking in approximately 17 grammes of heroin. 

12.If 10% of the heroin was for own consumption this would mean the defendant was trafficking in approximately 21 grammes of heroin, which would attract a starting point of about 5 years and 10 months’ imprisonment.  I am satisfied to reduce the starting point below that which would be appropriate for the amount the defendant admits is for trafficking would be wrong in principle. 

13.I am not satisfied that 10% of the heroin is a significant proportion.  Taking into account that the defendant was arrested on the street in possession of over twenty grammes of heroin; the latent risk factor and that possession of drugs carries a sentence in any event, I am satisfied the starting point should be reduced by 1  month to 5 years and 11 months’ imprisonment.

Commission of offence on bail

14.On 18 April this year the defendant was sentenced in the Kowloon City Magistracy to 8 months’ imprisonment for assisting in the management of a divan committed on 8 July 2017[6]. The present offence was therefore committed while the defendant was on bail for the divan offence.

15.The commission of offences while on bail is an aggravating feature of sentence.  I enhance the starting point by 3 months to 6 years and 2 months’ imprisonment.

Sentence

16.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 4 years and 1 month and 10 days’ imprisonment.

KCCC 906/2018

17.The defendant is still serving the sentence imposed on 18 April this year.  Taking into account the two offences are separate and distinct in place and time, having been committed in July 2017 and November 2017, I am satisfied wholly consecutive sentences are appropriate and that a total sentence of 4 years and 9 months and 10 days’ properly reflects the defendant’s criminality on the two charges.