HKSAR v. Cheung Wing Hon

DCCC396/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 396 OF 2009

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Reasons for Sentence

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1. The defendant has been convicted on his plea of one charge of trafficking in dangerous drugs, namely, on 5 March this year he trafficked in 14.46 grammes of a mixture containing 7.91 grammes of heroin hydrochloride. 

2. On the day in question, he was seen acting suspiciously by a police officer in the Tai Wo Estate in Tai Po, he was intercepted and searched, and the drugs in question were found inside a plastic bag which in turn was inside a cigarette box in his pocket.  Inside the plastic bag were no fewer than 110 resealable plastic bags, amongst which the drugs in question were distributed.

3. Under caution, the defendant admitted that he had helped someone to bring “the stuff” because he had no money, and subsequently, in interview, he elaborated that he had been asked by another male to help him traffic heroin, and because he was unemployed, he agreed to do so.  The defendant further admitted that this other male, the pusher, had passed him the heroin contained in the cigarette box on that very day and instructed the defendant to take it to the 10th floor of Fook Wo House in Tai Wo Estate and to place it beneath an incense-burning urn and he promised the defendant a reward of $300 for doing this.

4. The defendant has not of course received any of that reward because he was caught and arrested before he was able to complete the delivery of the drugs.  The defendant expressed his remorse and asked for a chance.

5. He is 27 years old and he has a very poor record, including two previous convictions for possession of dangerous drugs in 1997 and 1998 and a conviction for trafficking in dangerous drugs dated 12 April 2005, for which he was sentenced to 5 years and 8 months’ imprisonment. 

6. Miss Lin has informed me that the defendant was released from prison, on completion of serving his sentence in October 2008.  So he committed the present offence only four to five months after he was released from prison, having so recently served a long sentence for the identical offence of trafficking in dangerous drugs.  The defendant states through his counsel that he did try very hard to find a job after he was released from prison, and indeed his parents have confirmed that in the letter they have written to the court, but his parents state that all he was able to find was casual work, for which he was paid a daily wage. 

7. In her mitigation, Miss Lin submitted that because the defendant needed money, he was used by bad people to be a drug trafficker.  The correct way to state the matter of course is to say that the defendant agreed to be used by the traffickers to deliver these drugs.  It was his decision.  I accept that owing to his low education level, he found it hard to secure a good job.  So he was receiving public assistance, as were his parents, and I further note that his parents are both quite ill, and the defendant is the family’s main breadwinner. 

8. Miss Lin goes on to say that the defendant had no intention to harm anyone when he accepted the offer of a financial reward for delivering these drugs. Heroin, however causes an enormous amount of harm.  It ruins the lives of many people who consume it, and the defendant was doing a great deal of harm in agreeing to be part of the chain which was delivering these drugs to the end-consumers, thus contributing to spreading the misery that heroin causes.

9. So the defendant should have known very clearly that by delivering these appalling drugs to other people, he was in fact doing a great deal of harm.  Whether they were established addicts or people freshly experimenting with the drugs is really neither here nor there. 

10. It is really hard to understand how the defendant could have been prepared to take such a huge risk as he did when he had just served a sentence of over 5 years’ imprisonment for the same offence.  He knew the price that he would pay if he got caught. 

11. I accept for present purposes that the defendant is remorseful for what he did, also that he was the sole breadwinner, that his ill parents have depended upon him to perhaps a large extent both for financial contributions and to assist them in various ways, but none of these matters in my view entitle the defendant to any further discount from the proper sentence to impose.

12. The Court of Appeal has suggested guidelines for sentencing in these cases which are based largely upon the quantity of drugs which was being trafficked.  In RV Lau Tak Ming & Others [1990] 2 HKLR 370, the guidelines suggest that for up to 10 grammes of narcotic, a sentence of 2 to 5 years’ imprisonment after trial will normally be appropriate.

13. I can see no basis at all for departing from the guidelines on the facts of the present case, and I have adopted a starting point for the quantity of narcotic which the defendant was trafficking in the present case, being 7.91 grammes of heroin hydrochloride, of 4 years’ imprisonment after trial.  I note that the defendant has admitted the offence right from the time of his apprehension, and for that co-operation and for his plea of guilty, he is entitled to the normal one-third discount which reduces the starting point to 32 months’ imprisonment.  I can see no basis upon which to discount that figure any further.

14. I am not unsympathetic to his parents’ position.  They will of course greatly miss the defendant while he is in custody, serving his sentence, but I note they are on government subsidies and I am confident that they will get the assistance they need from the Social Welfare Department. 

15. So the sentence I impose is 32 months’ imprisonment.