HKSAR v. Cheng Koon Chau

DCCC 26/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 26 OF 2011

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Reasons for Sentence

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Introduction

1.The Defendant is convicted upon his own guilty plea of the charge of trafficking in a dangerous drug, namely 8.14 grammes of heroin hydrochloride.

2.The facts admitted by the Defendant revealed that:

(i) In the evening on 12^th November 2010, PC 33492 (“PW1”) intercepted the Defendant at the staircase between 1^st Floor and 2^nd Floor, Nos.28-30 Argyle Street, Mongkok, Kowloon;

(ii) Upon search on the Defendant, PW1 found from the Defendant 70 packets of materials subsequently found to contain a total of 11.69 grammes of a mixture containing 8.14 grammes of heroin hydrochloride (the “DD”);

(iii)Under caution, the Defendant claimed that it was for his self-consumption;

(iv) The Defendant possessed the DD for the purpose of trafficking; and

(v) The police estimated that the street value of the DD would be about HK$9,800.

The Defendant’s previous record and antecedent

3.The Defendant has 37 previous convictions, out of which there were 3 previous convictions of trafficking in dangerous drugs sentenced in December 1986 and August 2004, and 9 previous convictions of possession in dangerous drugs last sentenced in June 2008.

4.The Defendant was born in Hong Kong in October 1966. He is now 44 years old. He has received education up to Primary 6 level. He was unemployed at the time of his arrest in November 2010.

Mitigation

5.In mitigation, Mrs. Liang for the Defendant submitted that:

(i) The Defendant was cooperative and admitted the offence upon arrest;

(ii) He had no family members in Hong Kong and his grandmother was in the Mainland;

(iii)He had been a drug addict for over 20 years, so he needed money to feed his drug habit and to send money to his grandmother;

(iv) He was going to receive a reward of HK$500 for delivering the DD; and

(v) His last conviction of trafficking in dangerous drugs was back in August 2004.

Sentence

6.The sentencing tariff for trafficking in heroin hydrochloride has been laid down in R v Lau Tak Ming & Others [1990] 2 HKLR 370. The starting point for trafficking in up to 10 grammes of heroin hydrochloride is 2 to 5 years’ imprisonment.

7.Taking into account the Defendant’s allegation that the DD was for his self-consumption and Mrs. Liang’s submission that the Defendant was going to receive a reward for delivering the DD, and in light of the Court of Appeal’s decisions in HKSAR v Cheung Wai Heung & Others CACC 258, 370 and 371/2002 and Secretary for Justice v Yeung Chung CAAR 3/2002, I consider the starting point of 4 years’ imprisonment appropriate for trafficking in approximately 8 grammes of heroin under normal circumstances without aggravating features.

8.In the present case, the Defendant has 3 previous convictions of trafficking in dangerous drugs and 9 previous convictions of possession of dangerous drugs. Applying the principle in HKSAR v Chan Pui Chi CACC 706/1997, I will make an upward adjustment of 6 months.

9.As such, in the present case I will adopt a starting point of 4½ years’ imprisonment. Giving the Defendant the usual 1/3 discount for his guilty plea, the Defendant is sentenced to 3 years’ imprisonment.