HKSAR v. Tam Wai Chun

DCCC368/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 368 OF 2011

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Reasons for Sentence

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The Charge and the Facts

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 relatively simple. In the morning of 8 February 2011, while the police were conducting an operation in Yau Ma Tei, they found the Defendant acting suspiciously. He was seen taking out a cigarette packet from his front jacket pocket. He then withdrew a plastic bag from inside the packet and counted its contents.

3.The police therefore intercepted and searched the Defendant. As a result, the plastic bag was seized and it was found to contain 21 packets of heroin. Under caution, the Defendant admitted that the drug belonged to him and he also claimed that the drug was for his own consumption. Later, during his remand, the Defendant excreted a total of 13 packets of heroin. Under further caution, the Defendant admitted that, out of fear, he had swallowed the drug when the police arrested him.

4.The two lots of drug formed the subject matter of this offence, that is, the Defendant was said to have trafficked in a total of 7.9 grammes of a mixture containing 5.08 grammes of heroin hydrochloride. The estimated street value of the drug was about HK$6,100.

Mitigation

5.The Defendant is aged 45. He was educated up to Primary 2 level. He is divorced and was in receipt of comprehensive social security assistance at the time of his arrest, sharing a room with a room-mate. Miss Chiu for the Defendant, however, told the court that immediately before the Defendant’s arrest, he had worked as a casual renovation worker for some 9 days, earning about HK$900 per day.

6.The Defendant has been before the court on 15 previous occasions with 16 conviction records. Three of those were “possession of a dangerous drug”; five were “theft”; one was “robbery”; three gambling-related. The rest included “assaulting a police officer”, “giving false information to pawnbroker” and “AOABH”. He was sent to the DATC twice, one in 2008 and one in 2009. He was released from Hei Ling Chau Treatment Centre in September 2009.

7.In mitigation, it was said that, at the time, the Defendant helped his room-mate to buy the drugs and it was suggested that his room-mate would pay for half of the purchase price whereas the other half of the drugs was for the Defendant’s own consumption. Miss Chiu also told the court that, the Defendant actually bought the drugs at a discounted price of some HK$5,500 and the drugs were meant for his and his room-mate’s consumption for 10 days. Relying on HKSAR v Wong Suet-hau & Anor. [2002] 1 HKLRD 69, Miss Chiu submitted that as part of the drugs was for the Defendant’s own consumption, the sentence could be reduced accordingly.

The Defendant’s Claim for Self-Consumption

8.For the reasons given below, I do not accept the Defendant’s claim that he had part of the drugs in question for his own consumption :

(a) the drug had a retail value of about HK$6,100. Even based on the Defendant’s own claim that he had bought it at the price of HK$5,500, and working on that basis, it would still mean that he had to spend some HK$8,250 per month on drugs. Such is a large sum for a recipient of public assistance. Although Miss Chiu told the court that the Defendant had worked for 9 days with a daily wage of HK$900 before his arrest, it was said that his work could not provide him with any stable income as there might not be any work at times. Given these circumstances and that the Defendant, according to Miss Chiu, could not even afford a room all for himself, but had to share it with his room-mate, I do not accept that he could have half of the drugs in question for his own consumption.

(b) Although Miss Chiu told the court that the Defendant only purchased the drugs minutes before his arrest, there is no dispute that when being questioned under caution, the Defendant claimed to the police that he had bought the drugs in the evening before. If the Defendant had indeed made the purchase just minutes before his arrest, there could not be such a discrepancy.

(c) The Defendant was seen by the police to have taken out and counted the drugs before putting the packets back. If the Defendant had just purchased the drugs minutes ago, I do not see any reason for him to take out the packets and to count them in public shortly after his purchase. There were also other matters concerning the circumstances under which the purchase was said to have taken place which defied common sense. Suffice for me to say here that I do not accept the Defendant’s claim in court that he had just bought the drugs shortly before his arrest.

9.Therefore, although I accept that the Defendant is a drug addict, in the circumstances of this case and based on the summary of facts, his claim that part of the drugs in question was for his own consumption was not made out. In any event, such an amount would be an insignificant amount and would not materially affect the sentence to be imposed as the offence of “possession of a dangerous drug” would itself carry a term of imprisonment, and that the “latent risk” here was real given that the Defendant was said to have been living with a drug-addict room-mate at the time.

The Sentence Imposed

10.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 up to 10 grammes of narcotic, a term of imprisonment of 2 to 5 years is called for. In the present case, the narcotic involved was 5.08 grammes of heroin hydrochloride. For this quantity and after taking into account the facts of this case, including the fact that the place at which the Defendant was arrested was near a Methadone Centre which Miss Chiu accepted and which Miss Chiu agreed is a place where drug addicts would hang out, I consider a starting point of 3 years to be appropriate.

11.The Defendant pleaded guilty and he would get a 1/3 reduction in sentence for his plea.

12.I have carefully considered the matters put forth in mitigation and, other than his plea, I do not see any strong mitigating factor which would warrant any additional reduction in sentence.

13.3 years reduced by one-third is 2 years. The Defendant is therefore to serve a term of 2 years’ imprisonment for this charge.