HKSAR v. Chan Siu Kit

DCCC1014/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1014 OF 2009

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Reasons for Sentence

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1.The defendant Mr Chan Siu-kit faces one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2.The particulars of offence are that the defendant on the 8th day of July 2009, outside Wellcome Supermarket, 1st floor, Metro Harbour Plaza, No.8 Fuk Lee Street, Mong Kok, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely a total of 39.27 grammes of a mixture containing 25.30 grammes of heroin hydrochloride.

3.The defendant pleads not guilty to the offence but is convicted of it after trial.

Facts found

4.According to the facts found by the court, on 8 July 2009 at about 2000 hours the defendant and his girlfriend Miss Yip Kwai-ling were stopped and searched by the police outside the Wellcome Supermarket at Metro Harbour Plaza in Mong Kok, Kowloon.

5.Police found inside the shoulder bag carried by the defendant a brown envelope containing a transparent resealable plastic bag. Inside the plastic bag there were four smaller transparent resealable plastic bags containing a total of 182 pellets wrapped in red and white colour. They were the dangerous drugs in question which were a mixture of 39.27 grammes containing 25.30 grammes of heroin hydrochloride.

6.On being arrested and cautioned the defendant said that he carried the four packets of white powder for someone else for $1,000. The defendant further confessed at the scene of arrest and in the subsequent video recorded interview that he had collected the dangerous drug from Room 1, 10th floor, 271-281 Sai Yeung Choi Street North and had been waiting in the vicinity of the Wellcome Supermarket for the telephone call of the boss as to where to place the dangerous drugs for someone to collect.

Criminal record

7.The defendant has one previous conviction of fighting in a public place in 2000 in which he was bound over in the sum of $1,000 to be of good behaviour for 9 months.

Background report

8.According to the background report, the defendant is aged 27 and was brought up in a family with adequate parental care and discipline. He behaved well when young and was educated up to Form 5 level. After leaving school, he worked in optical shops for a number of years and set up his own optical business in 2005.

9.The flat in Metro Harbour View in which the defendant is living was purchased by him on mortgage in 2004 with his own earnings. The defendant is single but is in cohabitation with his girlfriend who is pregnant and is due to give birth on 10 March 2010, which is today. The defendant has no vice habit and is a family man.

10.According to the probation officer who compiles the background report, the defendant maintains that he is innocent of the offence.

Mitigation

11.The counsel representing the defendant points out that the defendant is a well-disciplined and hardworking person who through his own efforts has set up his own optical business. Due to the present incarceration, the flat which is owned by the defendant will have to be sold and the two optical shops which were opened by the defendant will have to be closed down.

12.According to the defence counsel, the girlfriend of the defendant has not yet given birth to the baby and is still in the process of labour. The counsel urges the court to take into consideration the good background of the defendant and to adopt as low a starting point as possible.

Sentence

13.Trafficking in a dangerous drug is not only a very serious offence but is also socially repugnant. For mere monetary gains, drug traffickers like the defendant make dangerous drugs more easily available to the general public thus resulting in more people being hooked to the illicit substance. They know full well that this does not only destroy the drug addicts themselves but will also cause tremendous harm to their families and society as a whole.

14.The Court of Appeal takes such offence very seriously and has laid down clear sentencing guidelines. According to R v Lau Tak Ming and others [1990] 2 HKLR 370, which is rightly cited by the defence counsel, for a quantity of 10 to 50 grammes of heroin hydrochloride, the normal starting point is one 5 to 8 years.

15.The amount of narcotics in the present case is 25.30 grammes which, according to the sentencing tariff, will in normal circumstances carry a starting point of about 6 years 2 months’ imprisonment.

16.I have much sympathy for the defendant because due to the present case he is unable to accompany his girlfriend who is giving birth to his first child and will not be able to see the baby for some time to come. The defendant, however, should be prepared for such a consequence when he decided to embark on such illegal activities.

17.According to the probation officer who compiles the background report, the defendant still maintains his innocence of the present offence. It shows that the defendant has no remorsefulness at all.

18.Having considered the whole circumstances including the good bring-up of the defendant, the court adopts a starting point of 6 years’ imprisonment. The court does not consider that there is any ground for the sentence to be reduced. The defendant is thus sentenced to 6 years’ imprisonment.

Defendant's application for leave to appeal his conviction refused by Court of Appeal. Please refer to CACC83/2010 dated 13 June 2011