HKSAR v. Wong Suk Mei

DCCC 710/2018

[2019] HKDC 54

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 710 OF 2018

____________

____________

REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 49.32 grammes of a mixture containing 14.38 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 today.  In summary on 3 April 2018 the police mounted an operation outside a sub-divided flat on the 5th Floor of 460 Castle Peak Road in Cheung Sha Wan.  The flat consisted of four rooms and the door of the flat was kept open.

3.At about 1242 hours when the defendant opened the door of Room D, the police intercepted the defendant.  The police executed a search warrant and entered Room D. 

4.Upon search the police, inter alia, found inside a black box a re-sealable plastic bag containing heroin and inside a glass container a re-sealable plastic bag containing 40 pink pellets and 20 yellow pellets of heroin.  A police dog also found one pink pellet of heroin.   

5.Traces of heroin were found on a spatula; in a transparent re-sealable plastic bag; on four tubes; on two electronic scales; a metal container and on a metal spatula.  The police also found a roll of aluminium foil; ten re-sealable plastic bags; 41 pink plastic sheets and 122 yellow plastic sheets. 

6.The defendant was arrested and under caution said the heroin belonged to her.  

7.The defendant was searched and a further 30 pink pellets containing heroin were found in the right front pocket of her trousers. The defendant was also found in possession of $9,290; one mobile phone and a key to Room D.  Under caution the defendant said the drugs were for her own consumption.

8.In a subsequent video recorded interview, the defendant, inter alia, said that the heroin was for her own consumption; she bought the heroin three days before; the yellow and pink plastic sheets were used to pack different sizes of pellets of heroin; she usually took two large pellets of heroin per day; she was unemployed and that the money seized was her savings. 

Mitigation

9.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Luk both in court and in his written submission together with the defendant’s mitigation letter and a letter written by the defendant’s mother. 

Starting point

10.In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[2].   Where the quantity of narcotic is between 10 and 50 grammes sentence falls within the range of 5-8 years’ imprisonment[3]. 

11.On a purely arithmetical approach a starting point of just less than 5 years and 4 months’ imprisonment would be appropriate for trafficking in 14.38 grammes of heroin.  I adopt a starting point of 5 years and 3 months’ imprisonment. 

Own use

12.The defendant claims that about 4 grammes of the heroin was for her own consumption.  The prosecution adopts a neutral position as to whether any of the heroin was for the defendant’s own consumption. 

13.Mr Luk submits that the fact the defendant was arrested in her apartment; apparatus for taking drugs was found in the apartment; under caution the defendant said the drugs were for her own consumption and gave details of her daily dosage and her urine sample taken on remand was positive for heroin, supports the defendant’s claim part of the drugs were for her own consumption[4].

14.The urine test shows positive for opiate and not specifically heroin.  The prosecution having confirmed with the Correctional Services Department that positive for opiate may include heroin, I am prepared to accept that at the time of her arrest the defendant was taking heroin and that about 4 grammes of the heroin may have been for the defendant’s own consumption[5].

15.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[6], in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang[7]; HKSAR v Tam Ling Yuen[8]; HKSAR v Liu Ming Sze[9]and HKSAR v Choi Chun Wo[10]cited by Mr Luk. 

16.In Wong Suet Hau the Court of Appeal said that in most cases the difference will be slight[11].  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. 

17.If about 4 grammes of the heroin was for own consumption this would mean the defendant was trafficking in just over 10 grammes of heroin, which would attract a starting point of 5 years’ imprisonment. 

18.If the basic starting point was reduced by 10% this would result in a starting point of about 4 years and 8 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. 

19.I am not satisfied that 4 granmes of the heroin for own consumption is a significant proportion.  Accepting that 4 grammes may have been for the defendant’s own consumption I am satisfied the starting point should be reduced by 2 months to 5 years and 1 month imprisonment.

Aggravating feature

20.In Lau Tak Ming the Court of Appeal said a sentencing judge may properly take into account previous history of narcotic offences.  The defendant has one conviction for trafficking in a dangerous drug in 2013 when she was sentenced to 3 years’ imprisonment for trafficking in ice. In the circumstances I enhance the starting point by 2 months to 5 years and 3 months’ imprisonment. 

21.Giving the defendant full credit for her plea of guilty she is convicted and sentenced to 3 years and 6 months’ imprisonment.