HKSAR V.Yip Shiu Wai

DCCC231/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 231 OF 2011

----------------------

----------------------

-------------------------------

Reasons for Sentence

-------------------------------

1.This defendant has pleaded guilty to one charge of trafficking in 13.11 grammes of a mixture containing 11.38 grammes of heroin hydrochloride.

2.On the date of the defendant’s arrest, 13 January this year, he was stopped and searched when police officers found him looking suspicious.  The drugs were found in two bags, both containing 40 packets of suspected heroin.  When the   defendant was arrested and cautioned, he admitted that the white powder was for his own consumption.

3.In a video record of interview conducted on the same day he explained further, that he had bought heroin for $4,000 on that day; that heroin was for his own consumption and would last one month; and he was on his way home after having collected it.  He would consume the heroin at home.  He would normally purchase 30 to 40 packets of heroin and would consume two to three packets each day.

4.It is clear from the facts that he was in possession of twice the amount he would normally purchase.  The estimated retail value of both packets combined was $9,203.

5.The defendant is not a man of clear record.  He has up to 11 previous convictions, most of them are related to drugs.  Specifically, he has two similar convictions for trafficking in 1990 and 1993.  He was last convicted in 2002, nine years ago, for possession of dangerous drugs for which he received a suspended sentence and a fine.

6.The defendant is now 65 years old and retired. He has the means to support himself by way of savings, as well as a son who gives him some money each month.  I have heard in mitigation that he purchased part of the drugs that he was in possession of was for his own consumption to feed his drug habit, the rest was for trafficking.

7.I have taken into account all the factors that are sets out in the authority of HKSAR v Wong Suet Hau, [2002] 1 HKLRD 69 at page 79 A to H.  These factors are designed to assist the court in accepting or finding whether there is any truth in a mitigation of this nature. 

8.What I find relevant from the mitigation put forward today is that the defendant does have previous similar convictions relating to possession of dangerous drugs which would suggest a drug habit.  The defendant, when he was arrested and was in police custody was taken by the police to a methadone clinic on the first and second day after his arrest to take methadone.  Under caution, he immediately admitted that he bought drugs for his own consumption.  There was no other evidence of paraphernalia found on him or anywhere else that is related to drug trafficking activities, and I will also accept that he can afford to fuel a drug habit from savings and money that he is given by his children.

9.It is possible that part of the dangerous drug was for his own consumption and I accept this mitigation.  Nevertheless, the defendant shall be sentenced as if he is trafficking drugs and this amount, but a lower starting point will be used to reflect the mitigation put forward.    

10.I have had the benefit of defence counsel’s very clear written mitigation and submissions, and I find the authorities he has submitted to be of assistance.

11.After taking into account mitigation, the letter from the defendant’s daughter, the quantity of dangerous drugs in this case and my finding that part of the dangerous drugs was for his own consumption, I will reduce what I consider the appropriate starting point for trafficking this quantity of heroin according to the authority of Lau Tak Ming.  What would have been a starting point of 5 years’ imprisonment, I will reduce that to 3 years and 9 months, which is a 25 per cent discount from the normal starting point. 

12.Defendant please stand up.  You will also be entitled to a further discount of one-third, that is 15 months for your plea today.  For this offence you are sentenced to 2 years and 6 months’ imprisonment.  Do you understand?

DEFENDANT: Yes.