HKSAR v. Ho Yan Yu

DCCC 717/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 717 OF 2010

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Reasons for Sentence

1.The Defendant was charged with one count of trafficking in a dangerous drug, namely, 6.09 grammes of a mixture containing 4.03 grammes of heroin hydrochloride. Such offence is contrary to S. 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.The Defendant pleaded not guilty to the charge but indicated that he was prepared to plea guilty to possession of a dangerous drug.

3.Such indication was not accepted by the Prosecution.  As the evidence presented to this Court is insufficient to warrant a conviction for trafficking in a dangerous drug, the Defendant is acquitted of the charge.  He was then convicted of possession of a dangerous drug under S. 8(1)(a) and (2) of the Dangerous Drugs Ordinance.

Sentence for possession of dangerous drug

4.S. 8(2) of the same Ordinance provides the maximum penalty as follows:-

“(2)(a) any person who contravenes any of the provision of subsection (1) shall be guilty of an offence and shall be liable –

(a) On conviction upon indictment to a fine of $1,000,000 and, subject to section 54A, to imprisonment for 7 years.”

Prosecution’s case

5.When the Defendant was emerging from a building at Fa Yuen Street, Mong Kok, he was intercepted by the police officers.  The Defendant, on his own volition, took out one transparent resealable plastic bag containing 30 pellets of dangerous drugs viz 5.09 grammes of a mixture containing 3.52 grammes of heroin hydrochloride.  He was also found in possession of cash in the sum of HK$2,520 and one mobile phone.

6.Under caution, he admitted that the thirty pellets in his possession were ‘white powder’ and were for his own consumption.  He further admitted that he purchased the said drugs at the price of HK$5,100 from an unknown person in Mongkok on 13^th April 2010.  These drugs will last him about one month.  He decided to purchase the drugs in one go to avoid being caught.  He was on his way to MTR for home, as he felt the urge of having dangerous drugs, he then went up the building intending to consume drugs there.  He had previously worked as a lorry attendant for about a year with a monthly income of HK$7,500.  He did not have any family burden.  He was unemployed since the end of the year 2009.  The money used to purchase the drug and the cash found on him upon arrest were his savings before he became unemployed.  His family and mother would sometimes give him money.

7.On 14th April 2010 and 15th April 2010, whilst the Defendant was remanded in custody in Lai Chi Kok Reception Centre, 3 pellets, containing 0.74 gramme of a mixture containing 0.51 gramme of heroin hydrochloride and one pellet containing 0.26 gramme of a mixture of heroin hydrochloride respectively, were later found in his excreta.  Under caution, the Defendant claimed he was frightened and he had accidentally swallowed them at the time of his arrest. 

8.The street value in April 2010 for the total quantity of 6.09 grammes of a mixture containing 4.03 grammes of heroin hydrochloride was HK$5,018.  The average consumption of a drug addict is between 0.25 gramme and 0.7 gramme of a gramme of pure heroin daily.

The background of the Defendant and mitigation

9.The Defendant is aged 33.  He started to abuse heroin in 1996.  At the age of 19, he had his first drug conviction.  Up to now he has 21 previous convictions, half of which related to theft and the other half was dangerous drugs related.

10.In mid-2007 he even abused ‘ice’ drug on top of heroin on a daily basis.

11.His last conviction for drug offence was in October 2007 and was sent to the DATC for treatment.  In July 2006 for pickpocket offences he was again sent to the DATC.  After his release, he carried on with his drug abuse habit.

12.The Defendant claimed that he had stopped taking ice in August 2009, but kept on abusing heroin drug.  Although he had been to the DATC for 5 times, he kept indulging in abusing drugs and was not determined enough to disassociate from his baneful peers.

13.Prior to his present jail custody, he abused heroin almost daily costing him about $200 on each occasion.  His last dosage of heroin was taken on 14^th April 2010.  Prior to this custody, he had been unemployed for about half a year.

14.The Defendant can be described as a persistent offender.  Due to the nature of the offence of which he was convicted, a DATC report was obtained on him.  As the Defendant has been kept in custody since April 2010, he is considered no longer a drug dependent and hence, not suitable for admission to a DATC.

The range of sentences for possession of dangerous drug

15.In view of the offence and the quantity of drugs involved, an immediate custodial sentence is inevitable.  There is no sentencing tariff of such offence.  Nevertheless the normal sentence range will be between 12 and 18 months’ imprisonment.

16.The Court of Appeal in HKSAR v. Mok Cho Tik CACC 165/2000 maintained their view that:-

“… the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be.”

17.This Court would adopt a starting point of 15 months’ imprisonment for possession of dangerous drug in view of the circumstances of the case and those of the Defendant.

Latent Risk Factor

18.The Court of Appeal further stated that:-

“The Existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

19.The Defendant had been a drug addict for at least 13 years, he had 9 previous convictions for simple possession and none for trafficking.

20.At the material time, the Defendant was found in the street with 34 pellets of heroin.  The amount found in the possession of the Defendant was 6.09 grammes of a mixture containing 4.03 grammes of heroin hydrochloride.  He claimed that before the arrest, he intended to take the drugs home where he usually kept them.

21.The average dose per unit for an addict was between 0.25 gramme and 0.7 gramme.  The quantity of the drugs with which the Defendant was found to have would according to the Defendant have lasted him one month.

22.He had been earning $7,500 monthly for about a year as a lorry attendant.  However, he was not in employment, regular or otherwise, for a few months before his arrest.  Although the Defendant claimed that his mother and family would sometimes give him money, he kept on spending over $5,000 per month on dangerous drugs even when he was unemployed.

23.In view of all the circumstances of the Defendant and those of the case, including the nature and quantity of drugs, the Court is satisfied that an enhancement of sentence for the latent risk factor though not of significant gravity is nevertheless called for. 

24.As such, this Court would add 3 months to the starting point for the latent risk factor.  The appropriate starting point for this case would therefore be 18 months.  The Defendant is entitled to a 1/3 discount for his initial indication of pleading guilty to simple possession, so as to reduce the sentence to 12 months’ imprisonment.  There is no other mitigating factor which would justify a further reduction in sentence.  As such, the Defendant has to serve a term of 12 months’ imprisonment.