HKSAR v. Yau Yiu Ming
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DCCC963/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 963 OF 2011 ----------------------
--------------------- Reasons for Sentence --------------------- 1.The defendant faces three charges. The 1st charge is for the offence of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. The 2nd and the 3rd charges are each for the offence of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance. 2.In respect of the 1st charge, he pleads not guilty and admits possession of the drugs in question. In respect of the other two charges, he pleads guilty and admits the related facts. 3.This court has heard evidence from the prosecution in respect of the 1st charge. After this court has ruled that the confessions made by the defendant inadmissible in evidence, the prosecution accepts the defendant’s lesser plea in respect of the 1st charge. Facts 4.On 23 June 2011, PC4522 intercepted the defendant at about 1453 hours in Chi Wo Street and seized from the defendant a knotted transparent plastic bag containing 50 small wrappers, each containing suspected dangerous drugs. Subsequent examination by the government chemist confirmed that these 50 wrappers contained a total of 11.02 grammes of a mixture containing 8.56 grammes of heroin hydrochloride (the 1st charge). 5.After his arrest, the defendant was remanded in custody at the Lai Chi Kok Reception Centre of the Correctional Services Department. On 28 June 2011, on two separate occasions, he excreted one wrapper and two wrappers respectively, each containing suspected dangerous drugs. Subsequent examination by the government chemist confirmed that the wrapper excreted on the first occasion contained 0.29 grammes of a mixture containing 0.25 grammes of heroin hydrochloride (the 2nd charge), and the two wrappers excreted on the second occasion contained a total of 0.59 grammes of a mixture containing 0.49 grammes of heroin hydrochloride (the 3rd charge). 6.In fact, when the defendant testified during the special‑issue hearing concerning the 1st charge, the defendant admitted that when he was intercepted by PC4522, the officer pulled out the knotted plastic bag containing the dangerous drugs, and three wrappers came loose out of the bag and he swallowed them. Criminal Record 7.Defendant has a total of 53 convictions involving 70 offences. His first conviction was in 1967 and the last one was in 2010. 14 of his previous convictions were in respect of offences concerning dangerous drugs. His last conviction relating to drugs was in year 2002. Personal and Family Background 8.Defendant is 62 years old. He lives alone in Hong Kong. He receives comprehensive social security assistance. During the trial, he has testified that he also earns money by selling pornographic discs and dutiable cigarettes. The Drug Addiction Treatment Centre Report 9.According to the DATC report, the defendant started to abuse heroin in 1968. He was sent to DATC in 1994 and 1995, but he had never stopped taking heroin. He took the drugs daily and spent $300 on each occasion. His last consumption of heroin was on 23 June 2011. Probably since he has been remanded for a period of time for the present case, the defendant is no longer a drug dependent according to medical examination. DATC treatment is therefore not recommended for him. Mitigation 10.Mr Ma, counsel for the defendant, submitted that there was insufficient evidence to show that the defendant smuggled dangerous drugs into prison. He further submitted that although the defendant has a long list of criminal conviction, his last drug convictions were in year 2002 and his record should not be counted too heavily against him. 11.According to Mr Ma, the defendant has now taken a different view of life and would like to go to Guangzhou upon release to stay with his girlfriend to live a quiet and normal life. Mr Ma stressed that the defendant had pleaded guilty to all three charges. Reasons for Sentence 12.The defendant was undoubtedly a deep-rooted drug addict at the time of the offence. He has been sentenced to prison on many occasions, and yet none of these prison terms stopped him from committing further offences or staying away from drugs. In addition, the quantity of drugs involved in the present case was quite large, i.e. a total of 11.9 grammes of a mixture containing 9.3 grammes of heroin hydrochloride. Under these circumstances, there is no alternative but imposing a prison term on the defendant. Mr Ma does not dispute that imprisonment is the proper sentencing option. 13.In assessing the length of the sentence of each of these three charges, I shall adopt a global approach because it is quite clear according to the facts admitted by the defendant, all the drugs involved in the three charges originated from the knotted plastic bag when he was intercepted by the police. 14.In light of the nature and the quantity of the drugs, I shall adopt 15 months’ imprisonment as the starting point. I agree with Mr Ma there is insufficient evidence to show that the defendant intended to smuggle dangerous drugs into prison. I do not intend to increase the defendant’s sentence on the ground of his criminal record. Although it is certain that he had taken drugs daily prior to his remand, the defendant has not been convicted formally of a drug offence after year 2002. 15.However, this court cannot discount the latent risk factor. In coming to this conclusion, I take into account the quantity and the packing of the drugs in question and the previous four trafficking record of the defendant in 1976, 1990 and twice in 2002. I also take into account the fact that the defendant has no formal occupation and is a recipient of CSSA and he has also engaged in selling illegal commodities, including pornographic discs and dutiable cigarettes. It appears to me that he had been prone to sell unlawful items for making money. I increase his sentence by 20 per cent to reflect this latent risk factor. In other words, the starting point of the prison term is increased to 18 months’ imprisonment. 16.Now, the defendant pleads guilty. He is entitled to the usual one-third discount. There is no other mitigating factor. I shall adjust the individual sentences for each charge to reflect the quantity of drugs referred to in that charge. For these reasons, the defendant is sentenced to 12 months’ imprisonment for the 1st charge, 6 months’ imprisonment for the 2nd charge, and 8 months’ imprisonment for the 3rd charge. I order all sentences are to run concurrently. The defendant has to serve a total of 12 months’ imprisonment accordingly.
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