HKSAR v. Chow Chun Keung

DCCC 148/2019

[2019] HKDC 770

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 148 OF 2019

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 38.24 grammes of a mixture containing 32.22 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. In summary at 11:51 a.m. on 28 November last year the defendant was intercepted by the police as he was about to enter Room 3801, Shing Tin House, Pak Tin Estate in Shek Kip Mei. 

3.Inside the flat the police found inside a drawer of the television cabinet one hundred and sixty re-sealable bags containing the heroin together with ninety-six empty re-sealable bags.    

4.Two keys to Room 3801, two mobile phones and $7,000 were seized from the defendant. 

5.Under caution and in a subsequent video recorded interview the defendant admitted, inter alia, that earlier that day he agreed to deliver drugs for Ming Gor for a reward of $1,000; he agreed because he was a CSSA recipient; Ming Gor gave him the drugs and asked him to keep the drugs in his home; he recognized the drugs were heroin; he took the heroin home which he hid in a drawer of the television cabinet;  he gave Ming Gor his mobile phone number so Ming Gor could call him with instructions for delivery of the heroin and he had nowhere to live so he lived with his friend in Room 3801.

6.The estimated street value of the heroin was $30,974.40.

Mitigation

7.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Ng as particularised in his written mitigation submission and orally in court, including the defendant’s old age and that the defendant is remorseful[2].

Starting point

8.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[3]. 

9.On a purely arithmetical approach a starting point of just over 6 years and 8 months’ imprisonment would be appropriate for trafficking in 32.22 grammes of heroin. Taking into account the age of the defendant and that he has no previous convictions for trafficking, I adopt a slightly lower starting point of 6 years and 6 months’ imprisonment. 

Own use

10.The defendant claims that 6 grammes were for his own consumption[4]. 

11.In support Mr Ng relies on the criminal record of the defendant which shows the defendant is a long term drug addict having been sentenced to the DATC in 1995 and more recently sentenced to imprisonment for possession of drugs in 2017.  Mr Ng also relies on the positive result of a urine test taken two days after his arrest on admission to Lai Chi Kok. 

12.The prosecution opposes the claim that part of the drugs was for the defendant’s own consumption. 

13.The claim is contrary to what the defendant told the police that he was keeping the drugs for Ming Gor pending instructions on delivery.  Mr Chan confirms that the defendant did not tell the police part of the drugs was for his own consumption.

14.As indicated in court I do not accept the mere assertion that part of the heroin was for the defendant’s own consumption.  Mr Ng having taken instructions from the defendant informs the court that the defendant does not wish to give evidence in support of his claim that part of the heroin was for his own consumption.

15.Notwithstanding the defendant may be a consumer of heroin I reject the defendant’s assertion part of the heroin was for his own consumption.  I proceed on the basis that all the heroin was for trafficking.  

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