HKSAR v. Chan Miu Hung, Mumu

DCCC 427/2022

[2023] HKDC 498

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 427 OF 2022

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, namely 6.32 grammes of a mixture containing 4.93 grammes of heroin hydrochloride.

SUMMARY OF FACTS

2.On 14 December 2021, police officers carried out an anti-drugs operation in the vicinity of the Ngau Tau Kok Methadone Clinic (the “Clinic”).  At about 6:55 pm, they intercepted the defendant at a bus stop nearby.  Inside the cross-body bag carried by the defendant, they found:

(1)  A re-sealable plastic bag (marked with “36”)  containing 32 wrapped pellets in black plastic sheet, subsequently certified to be 4.59 grammes of a mixture containing 3.55 grammes of heroin hydrochloride; and

(2)  A re-sealable plastic bag containing 18 wrapped pellets in green plastic sheet, subsequently certified to be 1.73 grammes of a mixture containing 1.38 grammes of heroin hydrochloride.

3.Police officers arrested the defendant for “trafficking in dangerous drugs”. Under caution, the defendant said “the dangerous drugs were for my own consumption”.  A mobile phone and cash of HK$4,937.70 were seized from her.

4.The defendant attended a video-recorded interview on the same day, and said, under caution:

(1)  The pellets seized from her were heroin;

(2)  She purchased the heroin in Mongkok at about 4 pm on the same day for self-consumption;

(3)  She lives in a flat in Kwun Tong which she rented for HK$3,400 a month;

(4)  At about 5 pm on the same day, she travelled from her flat to the Clinic by taxi;

(5)  She is a drug addict, consuming 2 pellets of heroin wrapped in black plastic sheet every day; and

(6)  The cash of HK$4,500 seized from her were CSSA payment.

5.The estimated street value of the heroin hydrochloride seized was around HK$7,186.

6.At the material times, the defendant possessed the heroin hydrochloride seized for the purpose of unlawful trafficking.

CRIMINAL RECORD OF THE DEFENDANT

7.The defendant had been sentenced by court on 4 occasions involving a total of 9 criminal convictions from 2002 to 2015.  One of them is related to dangerous drug.

MITIGATION

8.The defendant is now aged 47. The defendant’s father is 87 years old and her mother is 85 years old.  She has lost contact with her parents. She was educated up to form 5 level. Before her arrest, she was unemployed.

9.The defendant has a history of depression.  She is undergoing regular medical treatment and is on her way to recovery.

10.The defendant started taking drugs when she was 19 years old.  She eventually fell into addiction.  During her time in custody, she has found her faith as a Christian[1]. As part of her rehabilitation plan, the defendant had voluntarily applied for a placement in a half-way house.  She would then be immediately placed in a strict environment conductive to positive influence upon her release from custody.  Mitigation letters written by the defendant and Ministry Manager of the Hong Kong Christian Kun Sun Association were submitted.

11.It was submitted by the defence that according to the guidelines laid down by the Court of Appeal for trafficking in heroin, the starting point for trafficking in 4.93g of heroin would be around 3.479 years’ imprisonment (42 months). 

12.It was also submitted by the defence that the defendant’s remorse is largely reflected by her guilty plea. Given the defendant’s strong will to begin a new chapter in her life, a lenient sentence was asked for.

SENTENCE

13.I have considered the nature of the offence, the facts of the case, the background of the defendant and the mitigation submitted by the defence.

14.The defendant was found with two resealable plastic bags with 50 wrapped pellets containing 4.93 grammes of heroin when she was stopped. 

15.The tariff guideline for trafficking in heroin is set out in R v Lau Tak Ming & Others 1990 2 HKLRD 370. For up to 10 grammes of heroine, the sentence ranges from 2 to 5 years’ imprisonment.  The starting point according to the tariff for 4.93g of narcotic content is 42 months’ imprisonment.

16.As confirmed, the defence do not rely on self-consumption as mitigation. According to the admitted facts, the offence was committed in the vicinity of a Methadone Clinic, which is an aggravating feature (See 香港特別行政區 訴 吳培成及另一人 CACC 136/2003 and HKSAR v Ching Wan Fai [2002] HKCU 1460).

17.Nevertheless, the defendant would be placed in a half-way house voluntarily upon release as she was determined to cut ties with her drug habits. 

18.Having considered all the circumstances, I adopt a starting point of 42 months of imprisonment, after one-third discount upon the defendant’s guilty plea, the sentence is 28 months’ imprisonment.