HKSAR v. Hung Po King

DCCC 1239/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1239 OF 2010

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of possession of 0.04 gramme of a mixture containing heroin (charge 1); one charge of trafficking in 42.02 grammes of a powder containing 21.77 grammes of heroin and 199 tablets containing 2.65 grammes of midazolam (charge 2); one charge of possession of 0.16 gramme of a mixture containing heroin; two tablets containing 0.02 gramme of midazolam and two tablet fragments containing 0.01 gramme of midazolam (charge 3); and one charge of possession of apparatus fit and intended for injecting heroin and midazolam (charge 4) contrary to sections 4, 8 and 36 of the Dangerous Drugs Ordinance, Chapter 134.

2.In summary at about 07.33 hours on the 5th September this year the defendant was intercepted at the Green Channel of the Customs Arrival Hall, Lo Wu Control Point.  The defendant took out the heroin subject of charge 1 from her right front jeans pocket saying she had bought the heroin in Mainland China for her own consumption. The defendant also took out from her underpants a plastic bag containing the heroin and the midazolam tablets subject of charge 2.  The defendant admitted she was instructed to bring the drugs to Hong Kong and deliver them to someone in Shau Kei Wan for a reward of $800. 

3.Later the same day the defendant’s home was searched.  The defendant pointed out a plastic box on top of the washing machine on top of which was the heroin and midazolam together with 2 syringes.  The defendant admitted the drugs were for her own consumption, which she took by way of injection with the syringes (charges 3 & 4). 

4.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Chan together with the content of the letters submitted by the defendant and her family.  

5.In R v LAU Tak-ming [1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is between 10 and 50 grammes falls within the range of 5-8 years imprisonment.  I agree with Mr Chan that the proper starting point after trial for 21.77 grammes of heroin is one of 5 years and 9 months imprisonment.  There are however aggravating features of sentence justifying an increase in the starting point.

6.First, the defendant is properly to be regarded as a persistent offender having appeared in court 13 times amassing thirteen convictions, eleven of which are drug related with the last two for trafficking to which the defendant received sentences of 12 months and 28 months               (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830).  Second, the importation of drugs into Hong Kong is an aggravating factor for the purpose of sentence (see HKSAR v NGAN Fun-tak CACC 200/2007).  By reason of the defendant’s persistent offending and taking into account the drugs were imported into Hong Kong I increase the starting point by   6 months imprisonment to 6 years and 3 months imprisonment.

7.Trafficking in midazolam is far less serious than trafficking in heroin.  I am satisfied that the 199 tablets containing 2.65 grammes of midazolam should not increase the starting point (see for example the case cited by Mr Chan HKSAR v WONG Kam-wo CACC 469/2000 as applied in HKSAR v Amnuaychoke Nopporn CACC 441/2001 and HKSAR v Tam Wa-lun CACC 215/2004). 

8.Giving the defendant full credit for her plea of guilty the sentence on charge 2 is reduced to 4 years and 2 months imprisonment.  

9.I am satisfied the proper starting point after trial for charges 1, 3 and 4 is 6 months imprisonment.  Full credit for the pleas of guilty reduces the sentences to 4 months imprisonment.  Although the drugs and equipment were found in the defendant’s home and are therefore separate from charges 1 and 2, I am satisfied a total sentence of 4 years and            2 months imprisonment properly reflects the defendant’s criminality on the four charges.  Accordingly I order the sentences on charges 1, 3 and 4 to be served concurrent to each other and to charge 2. 

10.The defendant goes to prison for 4 years and 2 months.