HKSAR v. Chui Shing Fat

DCCC 1040/2020

[2021] HKDC 702

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1040 OF 2020

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REASONS FOR SENTENCE

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1.The 1^st defendant pleaded quilty to a charge of trafficking in a dangerous drug, namely 3.61 grammes of a mixture containing 3.21 grammes of heroin hydrochloride and 24 tablets containing 0.30 gramme of midazolam.

Summary of facts

2.On 29 July 2020, the police were on anti-narcotics operation, at 1:23 pm, PW1 saw the 1^st defendant passed something to a Chinese male who in turned passed cash to the 1^st defendant.

3.Police intercepted both of them and found the 1^st defendant was holding $260 in his right hand.  As in his left hand, there was a re-sealable plastic bag containing 29 plastic wrapped pellets containing heroin as mentioned in the charge.

4.Under caution, the 1^st defendant admitted that he sold No 4 heroin to the Chinese male for $260.  He sold the drugs to make money.

5.Further search on the 1^st defendant, a plastic bag containing 24 foil packed tablets was found in his right front trouser pocket.  Under caution, the 1^st defendant admitted that he sold midazolam to others to make some money.

6.In a subsequent video-recorded interview, the 1^st defendant said that:-

(1)  He purchased the heroin and midazolam at a price of $6,600 and $1,450 respectively.

(2)  He intended to resell heroin and midazolam at $260 per pellet and $70 per tablet respectively.

(3)  He sold a pellet of No 4 heroin to the Chinese male for $260.

(4)  He intended to use the proceeds of drugs trafficking to purchase drugs.

7.The market value of the heroin is $5,581.06 and $1,200 for midazolam.

Previous conviction

8.The 1^st defendant has 21 previous convictions records from 1987 to 2017.  Most of his convictions related to drugs, out of which 7 counts were trafficking dangerous drugs offence in 1996, 2004, 2010 and 2014.

9.He received imprisonment terms for both trafficking in dangerous drugs (from 10 months to 2 years)  and possession of dangerous drugs offences (in general under 6 months), except in a few occasions he received DATC order.

Mitigation

10.The 1^st defendant is now 48 years old, divorced, unemployed and lived with his mother and siblings.  The whole family relied on government financial assistance.

Sentence

11.The law for trafficking dangerous drugs is well settled.  For heroin, the sentencing guideline is Lau Tak Ming (1990)  2 HKLR 370.  In the present case, the quantity was 3.21 grammes of a mixture containing 3.21 grammes of heroin hydrochloride.  It falls into the sentencing bracket of 2 to 5 years.

12.Apart from heroin, there were also 0.3 grammes of midazolam.

13.The defence referred this court to Cheung Wai Man CACC 258/2017.  This court also invited the defence to read the case of HKSAR v Wong Kam Wo, CACC 469/2000.

14.In both cases, the appellants were convicted of trafficking of dangerous drugs which consisted of both heroin and small quantity of midazolam.

15.In the judgment of Wong Kam Wo, the court held that trafficking in midazolam is far less serious than trafficking in heroin.  It was inappropriate for the defendant to receive additional sentence merely because midazolam was a drug of a different nature to heroin.

16.In the present case, the quantity of 0.30 grammes of midazolam has a very insignificant impact on the overall sentence.  I am prepared to take the 3.21 grammes of heroin into account when passing sentence on the 1^st defendant.

17.As discuss with the defence counsel, in view of his previous convictions, it is not in dispute that the 1^st defendant is a persistent re-offender, this court takes the view that it is an aggravating factor.  There is a need to call for enhancement of sentence for greater personal deterrence and for protection of the community from the 1^st defendant’s criminal activity.  It has nothing to do with again punishing the 1^st defendant for his past crimes.

18.In HKSAR v Chung Ping Kun, CACC 85/2014, later adopted in HKSAR v Lau Tse Ho, CACC 144/2014, the Court of Appeal has laid down a broad suggested guideline of levels of enhancement of sentence in relation to drugs offences which involved drugs such as ice, heroin and cocaine:-

(a)  Up to 250 grammes: 6 months

(b)  Between 250 and 500 grammes: 6 months to 1 year

(c)  Between 500 to 1,000 grammes: 1 year to 2 years

19.In passing sentence, I bear in mind of all the mitigating factors before me.  The only valuable mitigating factor that has any bearing on the sentence is the 1^st defendant’s guilty plea.

20.I adopted a starting point of 3 years, enhanced by another 3 months, it adds up to 3 years 3 months, deduct the sentence by 1/3, it arrives at 2 years 2 months.

21.I order the 1^st defendant to serve a term of 2 years and 2 months.