HKSAR v. Ying Yu Fai

DCCC358/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 358 OF 2010

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Reasons for Sentence

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1.The defendant has been convicted on his own plea of one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134, namely 27.96 grammes of a mixture containing 7.94 grammes of heroin hydrochloride.

2.The particulars of the offence are that at 1350 hours on 9 February 2010, the defendant returned to Hong Kong from China via the Lo Wu boundary control point.  As he came out of the arrival hall, he was seen to be acting furtively and was intercepted at the concourse outside the immigration counter.

3.He was escorted to the Lo Wu Police Post for a body search.  One KY lubricant and a condom were found in his possession, and a trace of lubricant was found on the defendant.

4.He was taken to the North District Hospital for a body cavity search, where he excreted a condom containing the dangerous drugs, the subject matter of the present charge.

5.He was arrested for trafficking in dangerous drugs, and under caution, admitted that he had no alternative with the New Year around the corner.  He had bought the dangerous drugs from China to Hong Kong for sale in a bid to earn more money for celebrating the New Year, and he would also consume it.

6.The defendant now admits that he was in possession of the drugs in question for trafficking, although some of them were for his own possession.

7.The defendant has 19 previous court appearances, the last being in 2008 for possession of dangerous drugs, when he was sentenced to 10 months’ imprisonment.  His criminal record dates back to 1980.  He has four previous convictions related to the possession of dangerous drugs.  This is his first conviction for trafficking in dangerous drugs.

8.In mitigation, I am told that the defendant is aged 51.  He is married, and his wife and son live in China.  He is a drug addict. His record discloses that he has been to the DATC on two occasions, in 1993 and in 2005.

9.The antecedent statement discloses that he was educated up to Secondary 3 in China, and was a part-time renovation worker at the time of his arrest.  He lived alone here in Hong Kong.

10.As counsel has rightly said, the appropriate sentence for trafficking in up to 10 grammes of heroin hydrochloride is from 2 to 5 years’ imprisonment, pursuant to Lau Tak Ming [1990] HKLR 370.

11.The sentence follows the quantity of drugs. That would put the quantity in the defendant’s possession at the material time at the higher end of that spectrum, being 7.94 grammes of heroin hydrochloride, and would warrant a starting point of 4 years’ imprisonment.

12.Counsel for the prosecution indicates that he would accept that a small part of the drugs in question could have been for the defendant’s own consumption.

13.Pursuant to HKSAR v Wong Suet Hau and Another [2002] 1 HKLRD 69, I have taken into account that the defendant is a drug abuser and that some of those drugs would have been for his own consumption. There was no direct evidence of sale of any drugs.

14.Looking at those features of the case, I have decided that the appropriate starting point for this offence is one of 3½ years’ imprisonment.

15.The defendant has pleaded guilty and he is entitled to a discount of one-third to reflect that.

16.That is the only mitigation of weight before me.

17.He is therefore sentenced to 28 months' imprisonment.