HKSAR v. Choi Kar Keung

DCCC 239/2018

[2018] HKDC 962

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 239 OF 2018

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REASONS FOR SENTENCE

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1.The defendant is convicted of a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on his own guilty plea and on agreement to summary of facts.

2.Drugs involved is 15.48 grammes of mixture containing 11.66 grammes of heroin hydrochloride.

Facts

3.According to the agreed summary of facts, the defendant was found in possession of the above drugs outside Shau Kei Wan MTR Exit A3 at around 9.35 am on 4 December 2017.

4.The drugs was being packed into two plastic bags, in which there were respectively 52 packets containing a total of 7.85 grammes of mixture containing 5.92 grammes of heroin hydrochloride and 49 packets containing 7.63 grammes of mixture containing 5.74 grammes of heroin hydrochloride.

5.Government chemist confirmed the contents of the drugs, street value of which was approximately HK$12,476.88.

6.The defendant was arrested, and under caution, he admitted that the drugs was for his own consumption.

7.The defendant also had with him at the time of arrest one mobile phone, one Octopus card, one bank ATM card and HK$5,547.70 cash.

8.On the day of arrest, the defendant in the video recorded interview said that he lived in North Point and did not claim CSSA and was an odd-job cleaner.  He also claimed that the drugs found on him belonged to him and around the time of his arrest he was at Shau Kei Wan to see if anyone wanted the goods, “the goods” meaning the dangerous drug heroin.  He also claimed in the video recorded interview that he did not on the day of arrest give anyone any of this dangerous drug.

Criminal records

9.The defendant has 34 previous convictions, dating back to year 1973, 31 of these convictions relating to drugs and 4 are similar convictions as the present case.

Mitigation

10.The defendant is aged 60. 

11.He was born in Hong Kong and received education up to Primary 5 level. 

12.He is divorced, with a son whom he has lost contact.

13.He was working as an oddjob cleaner at the time of the arrest. 

14.He said that since his last release from prison he has quitted his drug habit.  He said he committed the present offence for financial gain.

15.In the mitigation letter from the defendant handed to this court, defendant vows to turn a new leaf on release from prison this time and that he is deeply remorseful as to what he has done.

Discussion

16.Trafficking in dangerous drugs is a serious offence, and in usual circumstances, personal background and circumstances is not considered a valid mitigating factor.

17.In the case of R v Lau Tak Ming & Others, CACC 230/1989, the band for sentencing a defendant for trafficking in heroin between 10 grammes and 50 grammes would lie between 5 to 8 years.

18.Considering the quantity of drugs in question in the present case, the sentencing starting point should be 5 years and 6 weeks.

19.This court noted that the defendant had similar drug related offence convictions since 1973 when he was 15.  Since then he had 31 drug-related convictions, of which four are dangerous drug trafficking convictions, the last one being in year 2012 when he was sent to prison for 2 years. 

20.No doubt he is a persistent offender referred to in the Court of Appeal case of HKSAR v Chan Pui Chi, CACC 706/1997.  There, the court recognised the need for a deterrent sentence on repetition for drug trafficking cases. 

21.I therefore enhance the sentencing starting point to 5 years and 3 months.

22.The defendant has pleaded guilty timely.  That is his very strong mitigating factor, of which he is entitled to full one-third sentencing discount.

23.The defendant is sentenced therefore to 3 years and 6 months.

24.Personal background of the defendant and the reason for commission of the offence in the present case obviously are not valid mitigating factors.

25.Further, the defendant has through his defence counsel claimed he is no longer a drug addict.  It meant therefore that all drugs seized are for trafficking purpose.

26.It is therefore not appropriate for this court to consider any sentencing allowance on the basis that part of the drugs are for his own consumption.

27.There is no other mitigating factor. 

Sentence

28.The defendant is therefore sentenced to 3 years and 6 months’ imprisonment.