HKSAR v. Chan Hung Hoi

DCCC 940/2017

[2018] HKDC 932

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 940 OF 2017

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in heroin and midazolam, 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 today. In summary at about 4:45 p.m. on 26 July last year PC 13101 intercepted the defendant in the rear lane of No. 76 Thomson Road in Wan Chai.  PC 13101 found inside the defendant’s waist bag three transparent re-sealable plastic bags inside which was a total of thirty-three white colour plastic packets containing a total of 8.3 grammes of heroin.    

3.The defendant was also found in possession of $6,669.60; one ATM card; a mobile phone and two phone books. 

4.After his arrest the defendant was remanded in Lai Chi Kok Reception Centre where he was placed alone in an isolation cell.  At around 8:05 a.m. on 29 July 2017 officers of the Correctional Services Department saw the defendant put outside the cell his excrement wrapped in newspaper instead of in the pan provided in the cell.

5.Examination of the excrement revealed twenty-one packets containing a total of 2.27 grammes of heroin and five tablets containing 0.07 gramme of midazolam. 

6.Under caution and in two records of interview the defendant said, inter alia, that at the time of his arrest he had swallowed the drugs.

Mitigation

7.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Chan.  I take into account the defendant is of poor health as particularised in the many medical reports submitted to court.   

8.Mr Chan tells the court that the defendant has been a drug addict for over twenty years and that occasionally he sells drugs to support his drug addiction.  The defendant told the police that the drugs found on him were for his own consumption and would last him for a month.  Mr Chan confirms that all the drugs were for trafficking and no claim is made that part of the drugs were for own consumption.

Starting point

9.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]. 

10.I am satisfied the appropriate starting point for 10.57 grammes of heroin is 5 years’ imprisonment.  I am further satisfied that the small quantity of midazolam, 0.07 gramme, does not increase the starting point[3].

Persistent offender

11.The defendant has appeared in court on thirty-one occasionsamassing a total of thirty-nine convictions, of which seven are for trafficking in drugs and twenty for possession of drugs.  The last conviction for trafficking was in 2013 when the defendant was sentenced to a total of 40 months’ imprisonment for possession of drugs and trafficking in drugs[4].

12.I am satisfied the defendant is a persistent offender by reason of which I enhance the starting point by 6 months to 5 years and 6 months’ imprisonment. 

Sentence

13.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 8 months’ imprisonment. 

14.Whilst I have sympathy with anyone who has poor health, whatever their age, I am satisfied the defendant will receive proper medical care and attention while serving his prison sentence.  The ill health of the defendant is not a ground to further reduce the sentence.