HKSAR v. Wong Sau Ming

DCCC738/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 738 OF 2011

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Drugs Ordinance, Cap.134.

2.He is charged with trafficking 199 tablets and 0.22 gramme of tablet fragments containing a total of 2.73 grammes of midazolam and 84.21 grammes of a mixture containing 32.62 grammes of heroin hydrochloride. 

3.On 5 May this year police officers acting on information followed the defendant on the MTR.  They put him under surveillance at the Kowloon Tong MTR station and intercepted him when he got off the MTR at Sai Wan Ho MTR station.  He was taken to the Police Duty Room of that MTR station and searched.  There were 3 plastic bags of heroin and one bag of blue tablets found on the defendant’s person.  When the defendant was arrested for trafficking in those drugs, he was cautioned and under caution claimed all drugs seized were for his own consumption. 

4.He, in a subsequent interview told the police that he had bought the drugs on the mainland for a total of $37,000.  When he was arrested, he had some RMB and HK$22,889 on his person.

5.The police estimated the street value of the heroin and the midazolam was about $67,000 odd and $10,600 respectively.

6.The defendant has 14 previous convictions for which 7 relate to dangerous drugs.  Of those 7, 5 relate to trafficking dangerous drugs.  His last conviction was a High Court conviction in 2001 where he was sentenced to 8 years’ imprisonment for trafficking dangerous drugs. 

7.I have heard mitigation on behalf of the defendant today.  He is 51 years old and married.  He is not employed and on public assistance of HK$2,000 odd per month which would make it highly unlikely he could afford to pay $37,000 for drugs for his own consumption. 

8.He used to be a drug addict; in fact, his first drug offence goes as far back as 1977.  I was told that when he served his sentence for the High Court conviction and was released, he was no longer addicted to any dangerous drugs.  Unfortunately for the defendant, in 2006 he was diagnosed with serious liver problems.  I have been told that this led to his relapse and re-acquaintance with heroin.

9.I have been told that he was at the time of his arrest needing 1 gramme of heroin per day.  Defence counsel’s instructions are that of the 32.62 grammes in this charge 1 gramme was for his own consumption and the rest for trafficking. 

10.Besides his liver problem, the defendant has told the court he is suffering from diabetes, high blood pressure and possible stomach or colon problems.  I can see for myself that the defendant’s pallor is very grey which would indicate liver problems. 

11.I have also before me a letter from Father Witherspoon who is the chaplain at the Correctional Services Department.  He starts by saying he rarely writes letters such as this because they give false hope to defendants.  He does write to the court because he is convinced the defendant is very remorseful.  He also wishes to inform the court that he is of poor health, physically as well as mentally.  He asks the court for maximum leniency.  He also suggests that St Stephen’s Society would be very helpful for him.  I would take into account the contents of the letter. However, sending you to St Stephen’s is not an option open to me. 

12.The charge in itself is very serious and the drugs involved and the quantity of the drugs involved makes this a case where only imprisonment is appropriate.  Where heroin is concerned, the court will follow the guidelines set out in the authority of Lau Tak Ming [1992] HKLR 370.  Where 10 to 50 grammes of heroin is trafficked, a 5 to 8-year sentence would be appropriate.

13.Where midazolam is concerned, I have looked at the authority of the AG v Chan Chi Man [1987] HKLR 221.  Where midazolam is trafficked and the quantity is under 500 grammes, sentencing is normally as the court thinks fit.  If the quantity was over 500 grammes, a 6 to 12-month sentence would be appropriate.  Here the charge involves a very small quantity of midazolam, 2.73 grammes.  Alone, this would attract a very short sentence.

14.After considering the facts and the quantity, I am not going to add to the starting point that I ultimately take for trafficking this quantity of heroin.  According to the Lau Tak Ming guidelines, 30 grammes of heroin would attract a 6½-year starting point.  And here the quantity is 32.62 grammes.  I will take into account that a small amount was for your own consumption; I will accept that.

15.I will also take into account the only other mitigating factor I consider relevant is his ill health.  Physically, I can see he is not in good health; I can see that without a full medical report.  And I can also accept that Father Witherspoon mentions his health being of great concern to him. 

16.Stand up please, defendant.  After considering mitigation, the drugs involved in this case, the quantity, your plea today and the facts of this case, I will, despite the guidelines of Lau Tak Ming take a slightly lower starting point of 5 years and 9 months.  You have pleaded guilty and you are entitled to a discount of one-third from that starting point.

17.For this offence, you are sentenced to 3 years and 10 months.