HKSAR v. Fong Chi Keung

DCCC 1077/ 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1077 OF 2008

___________________

Before: Deputy District Judge Eddie Yip

Date: 5 Jan 2009 at 10:15 am

Charge:  Trafficking in a dangerous drug (販運危險藥物)

__________________

Reasons for Sentence

__________________

The charge and the facts

1.The defendant pleads guilty to a charge of trafficking in a dangerous drug, namely 21.51 grammes of a mixture containing 13.15 grammes of heroin hydrochloride.  At about 10:42 p.m. on 18^th September 2008 outside Block 12, Pak Tin Estate, Sham Shui Po, Kowloon, the police stopped the Defendant, who looked suspicious.  A body search was conducted with the following findings:

(a)   1 transparent resealable plastic bag containing 59 packets with contents (later known to be 10.73 grammes of a mixture containing 6.57 grammes of heroin hydrochloride;

(b)  1 transparent resealable plastic bag containing 60 packets with contents (later known to be 10.78 grammes of a mixture containing 6.58 grammes of heroin hydrochloride.

2.Under caution the defendant said that he was to deliver the things to Nam Cheong Estate for a reward of $400.  He knew that the things were heroin.

The Defendant’s circumstance

3.Born in 1958, he was 49 years old at the time of the offence and 50 years old now.  His parents have died.  He has 2 younger brothers, both in their forties.  He had a previous marriage.  He has lost contact with his ex-wife and 2 children.  His present wife is a housewife, who bore him a daughter, now aged 18 and a son, now aged 5.  The family lives on public assistance.  Because of his addiction, the family is not in harmony.   

4.He attained P6 education.  He did various unskilled jobs.  Very often he was out of job.  He has been suffering from cirrhosis of the liver for a few years.  He started to consume heroin since he was 17 years old.  He committed the present offence to earn a reward of $400.  For quantities over 1 ounce, he could earn a reward of $500 per trip.

5.He had 17 previous court cases, ending up with 20 convictions.  They included 2 similar convictions, both on 6 September 1999, and 7 convictions for possession of a dangerous drug, from 1983 to 2008, and other unrelated convictions.      

Principles for sentencing the present offence

6.There are tariffs laid down by the Court of Appeal in The Queen v Lau Tak Ming [1990] 2 HKLR 370 for traffickers in heroin as follows:

(1)  up to 10 grammes of narcotice: 2 to 5 years’ imprisonment;

(2)  between 10 grammes and 50 grammes: 5 to 8 years;

(3)  between 50 grammes and 200 grammes: 8 to 12 years;

(4)  between 200 grammes and 400 grammes: 12 to 15 years;

(5)  between 400 grammes and 600 grammes: 15 to 20 years;

(6)  over 600 grammes: 20 years to life imprisonment.

7.It observed that within the suggested bands, the sentencing judge might properly take into account the following factors:

(1)   The profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of the dangerous drugs involved;

(2)   The number of packets;

(3)   The type of mixture containing the narcotic;

(4)   The degree of involvement of the offender; and

(5)   His previous history of narcotic offences and matters of mitigation which may have been advanced on his behalf.

The sentence I pass

8.In our present case, there were 13.15 grammes of heroin hydrochloride.  That would be within the band of 5 to 8 years’ imprisonment.  Coupled with his having 119 packets in total and 2 previous similar convictions, I take 6 years as the starting point.  Because of his plea of guilty, I reduce it to 4 years.  There are no other mitigating factors.  This is the sentence I pass here.

9.Lastly, the Defendant has been serving 4 months’ imprisonment for possession of a dangerous drug (KT/5636/08).  On totality I now order that 1 month of that case be served concurrently with our present case.