HKSAR v. Chiu Wai Wai

DCCC1112/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1112 OF 2010

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Reasons for Sentence

1.The defendant faces one charge of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. It is alleged that the defendant on 9^th August 2010, inside toilet no.GC038, Accident and Emergency Unit, North District Hospital, Sheung Shui, New Territories, unlawfully trafficked in dangerous drugs, namely 28.21g of a mixture containing 24.44g of heroin hydrochloride, 0.04g of a powder containing midazolam and a total of 138 tablets and 0.37g of tablet fragments containing 1.87g of midazolam.

2.The defendant pleaded guilty, admitted to the summary of facts and was duly convicted.

Facts

3.The defendant was intercepted by Police officers at about 9:11pm on the charge date at a bus stop while waiting for a bus at the Lok Ma Chau Boundary Control Point. He was brought back to the Lok Ma Chau Police station and searched. Traces of lubricant was found near the anus of the defendant. The Police suspected that the defendant had hidden dangerous drugs inside his body.

4.The defendant was taken to the North District Hospital. At 11:16pm, inside toilet no.GC038 the defendant excreted 2 condoms. The defendant admitted under caution that inside the condoms were heroin and midazolam, which he brought in from mainland China back to Hong Kong for self-consumption and sale.

5.In a subsequent video recorded interview, the defendant further admitted that he bought the drugs in Shenzhen on 9^th August. He put them inside condoms which he then inserted into his rectum and returned to Hong Kong. The defendant admitted that he would inhale the mixture of heroin and midazolam. He would also sell the heroin to his friends at HK$150 per 0.25g and the midazolam at $20 per tablet.

6.The defendant had HK$1,294 and RMB2 in cash when arrested. Police estimated the street price of the seized drugs would be about $27,957.

Previous convictions

7.The defendant has 7 previous convictions, with 6 being drug related. The defendant had never been convicted of trafficking in dangerous drugs before.

Mitigation

8.The defendant’s mother and social worker were in court to show their support. The defendant was born in Hong Kong, he was educated up to F.3 level because if poor school performance and the defendant wanting to start working to help out the family’s financial situation. The defendant was working as a retail sales person in Mongkok selling costume jewellery at the time of his arrest. He earned around $8,000 per month and contributed around 2,000 to 3,000 for the upkeep of the family.

9.The defendant lives with his mother who is 60+. She is working as a cleaning lady but suffers from high blood pressure. It is submitted that the defendant’s mother was forced to work to maintain the family, although it is noted that the family consisted just of the defendant who is an only child and his father before he suddenly passed away earlier this year. I was not told if his father was working or not prior to his passing away. The defendant is the only child of the family. The defendant got married around 5 years ago when he was 26. His wife lives in mainland China and the defendant would visit her once or twice a week.

10.As a result of the defendant’s father’s sudden death, all the family’s savings were spent on funeral expenses. I am told that this and the fact that dangerous drugs is a drug addict caused the defendant to make the wrong decision and committed the present offence.

11.5 letters in mitigation were submitted, they include letters written by the defendant himself, his employer and his church chaplain.

12.At the end of her submission, I asked Ms. Chong if she had anything to add in relation to the claim that part of the drugs were for self-consumption and part for sale. Ms. Chong took instructions and said that the defendant told her that most of the drugs were for his own consumption and only a small amount was for sale and if he did sell, they were only for his friends and not young people.  

Sentencing authorities

13.According to the case of R v Lau Tak-ming and Anor [1990] 2 HKLR 370, the sentencing guidelines for trafficking of between 10 grammes and 50 grammes of heroin is 5 to 8 years’ imprisonment.

Sentence

14.Although the defendant trafficked in 2 different drugs, the bulk was in heroin hydrochloride. According to the Court of Appeal in the case of HKSAR v Wong Kam Wo, CACC469/2000, trafficking in midazolam is far less serious than trafficking in heroin.

15.In that case the appellant pleaded guilty to one charge of trafficking in dangerous drugs. The drugs involved were a mixture containing 12.05 grammes of heroin hydrochloride and 103 tablets containing 1.928 grammes of midazolam maleate. The Court of Appeal was of the view that even “if the quantity of midazolam had, for argument's sake, been a further quantity of heroin weighing about 2 grammes, it is most unlikely that the sentence would have been affected” and found that it was “inappropriate for the Appellant to have received any additional sentence merely because midazolam was a drug of a different nature to heroin.” 

16.The same observation would apply to our present case, only more so since the heroin involved is double the quantity in Wong Kam Wo.

17.Ms. Chong for the defendant submitted that most of the drugs that the defendant brought in were for his own consumption. I doubt if this is true and in any event this is in contradiction with the facts that the defendant had admitted to when pleading guilty. At paragraph 7, it is stated that the defendant had in the video recorded interview admitted that he would sell the Heroin as well as the Midazolam to his friends, whereas the mixture of heroin and midazolam was for his inhalation. According to the Government Chemist report in evidence, of the 2 condoms, only 1 contained heroin hydrochloride alone. I find that this is the heroin that the defendant was referring to in the summary of facts and this was the quantity that he was intending to sell.

18.Furthermore, if most of the drugs were for his self-consumption, how would the defendant raise money to help the family, given that the spending of all the family savings on his father’s funeral was tone of the main causes that caused him to resort to trafficking in dangerous drugs. The defendant is obviously not telling the truth when he said through his counsel that most of the drugs were for his own consumption.

19.I have considered the mitigation put forward on behalf of the defendant but there is nothing in terms of mitigating factors that would allow me to depart from the guidelines.

20.I will therefore adopt a starting point of 72 months’ imprisonment, being the proportional application of the Lau Tak Ming guidelines for the heroin, reducing it by one-third in recognition of the defendant’s guilty plea and sentence him to 48 months’ imprisonment.