HKSAR v. Chan Pui Fu

DCCC1024/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1024 OF 2010

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Reasons for Sentence

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1.The Defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.The facts are simple. On 7 July 2010, while the police were executing a search warrant at 5/Floor, No. 193 Shanghai Street, Yaumatei, the Defendant was seen coming out from a cubicle inside the flat at No. 193. The Defendant was stopped for an identity check, but the police officer then noticed that there was, on the table inside the Defendant’s cubicle, a transparent plastic bag containing some white substance. It later turned out that this bag indeed contained 25 small packets of heroin, each of which was formed by folding a small plastic sheet with the heroin inside.

3.Upon further search, other paraphernalia including one transparent plastic bag containing caffeine; two transparent plastic bags containing solid heroin; one banknote with traces of heroin; a pair of scissors; a stack of small plastic sheets; a piece of tinfoil, a lighter; and an electronic digital scale, were found.

4.Subsequent examination confirmed that the drug found inside the Defendant’s cubicle were a total of 13.88 grammes of a mixture containing 11.93 grammes of heroin hydrochloride, that is, the drug particularized in the charge. The estimated retail value of the drug was about HK$12,589.

5.Under caution, the Defendant said that the 25 packets of heroin were bought at the price of HK$7,000 the day before and that all the paraphernalia were for his consumption of the drug. He further claimed that the drug was packed into small packets in order to limit the quantity of his own consumption. In relation to the HK$4,000 odd found in his wallet, the Defendant said that it was savings from his public allowances.  

6.The Defendant is aged 61. He is single but has got a daughter. He has been before the court on 6 previous occasions with one conviction of bookmaking, four convictions of possession of a dangerous drug; two convictions of possession of pipe/equipment fit and intended for smoking/injecting/inhaling dangerous drug; and two convictions of trafficking in a dangerous drug. He had odd jobs at times and his last employment was with a golf club. At the time of the offence, he was receiving comprehensive social security at the sum of about HK$3,900 per month out of which he paid HK$1,500 for rent.

7.According to the record, the Defendant is clearly a drug addict for he has been sent to Hei Ling Chau Correctional Institution before and was released in August 2009.

8.In mitigation, Mr. Kelly told the court that the Defendant started his drug addiction at the age of 23 and it would appear that he is still unable to deal with his drug addiction problem. Mr. Kelly said that part of the drug concerned was for trafficking and part of it was for the Defendant’s own consumption as what he had told the police under caution and the daily dosage was less than 1 gramme. Mr. Adams did not take issue with this claim of the Defendant but pointed out that there was no indication as to what the amount for self-consumption was.

9.For the reasons given below, I take the view that the amount of drug which was for the Defendant’s self-consumption would not be a significant amount :

(a) the drug had a retail value of HK$12,000. Even the Defendant’s own admission was that he bought it at the price of HK$7,000;

(b) the Defendant was on social security with a monthly allowance of HK$3,900 out of which he then had to spend HK$1,500 on rent, leaving about only HK$2,400 for his own use;

(c) even if a bulk purchase would mean cheaper drugs, the Defendant, with his limited means, could not have bought HK$7,000 worth of drug in one go for his own consumption;

(d) the Defendant’s claim that the 25 packets were so packed in order to limit his own consumption also defies common sense. If he had meant it for self-consumption, there was no need to have the drug packed so neatly with plastic sheets and then had the 25 packets packed into another plastic bag. The fact that an electronic digital scale was found on the table was also a strong indication that the drug had been weighed.

10.Therefore, although I accept that the Defendant is a drug addict and that part of the drug in question could be meant for his own consumption, I find that such amount would not be a significant amount, and that in accordance with HKSAR v Wong Suet-hau & Anor. [2002] 1 HKLRD 69, it would not mean any major difference in sentence.

11.In R v Lau Tak Ming & Others [1990] 2 HKLR 370, the Court of Appeal laid down the tariffs for trafficking in heroin. For trafficking between 10 and 50 grammes of narcotic, a term of imprisonment of 5 to 8 years is called for. In the instant case, the narcotic involved is 11.93 grammes of heroin hydrochloride. For this quantity, I consider a starting point of 5 years and 2 months to be appropriate. However, in view of the fact that a small amount of the drug could be for the Defendant's own consumption and that the prosecution does not dispute this, I am prepared to adopt a lower starting point, which is one of 4 years and 9 months.

12.I have carefully considered the matters put forth in mitigation. Other than the Defendant's plea, I do not see any other factors which would warrant a further reduction in sentence. The Defendant pleaded guilty and he will be given a one-third reduction for that. He is therefore to serve a term of 38 months' imprisonment for this charge.