HKSAR v. Yip Wai Hong, Tony

DCCC44/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 44 OF 2012

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Reasons for Sentence

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1.The defendant has pleaded guilty to a charge of trafficking in a dangerous drug, namely 15.84 grammes of a mixture containing 10.2 grammes of heroin hydrochloride. Such offence is contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

The facts

2.The facts of the case could be summarised as follows.  On 16 November 2011, police had laid an ambush outside Flat 1A, 1st Floor, Wah Hing Building, Nos. 269–271 Temple Street at Yau Ma Tei, Kowloon (“the flat”).

3.At around 8.35 pm, DPC5321 (PW1) saw the defendant leaving the flat with a black shoulder bag (E1).  As the defendant had revealed that he lived in Room No. 1 of the flat (“the room”), PW1 brought the defendant back to the room for a search.  Upon search, a transparent resealable plastic bag containing 15.84 grammes of a mixture containing 10.2 grammes of heroin hydrochloride (E3) was found inside E1. 

4.The defendant was arrested and cautioned.  Under caution, the defendant stated that he helped others to carry dangerous drug because he wanted to make money. 

5.The police then searched the room.  18 transparent resealable plastic bags (E5) and 23 plastic sheets (E6) held by a metal clip were found inside a cloth bag (E4) which was placed on a folding table. 

6.Under caution, the defendant admitted that:

(a) he lived in the room with his friend and the room was rented by his friend. He was however, responsible for half of the rental;

(b) E3 was handed to him by a male called Wo Chai outside a convenience store at round 5 pm on the same day. He invited Wo Chai to come to a party which would be held in the room that night;

(c) he knew E3 was No. 4 heroin. He brought E3 back to the room for others to consume in the said party that evening; and

(d) he would use E5 and E6 to pack the left-over heroin for others to take away.

7.The total estimated street value of all the drugs seized was $12,719.  At the material time the defendant possessed E3 for the purpose of unlawful trafficking. 

Sentencing guidelines

8.The Court of Appeal in R v Lau Tak Ming and Another, CACC230/1989, set out sentencing tariff for trafficking in heroin after trial.  It was held that for up to 10 grammes of narcotic contents, 2 to 5 years’ imprisonment is warranted.  Between 10 grammes and 50 grammes of narcotic contents the sentence would range from 5 to 8 years’ imprisonment.

The defendant’s background and mitigation

9.The defendant is now 36 years old.  He has 30 previous convictions, 13 of which related to dangerous drug and Part I poison. His last conviction was on 8 July 2011 whereby he was sentenced to 2 months’ imprisonment for an offence of possession of Part I poison. 

10.Very soon upon his release on 6 August 2011, he committed the present offence of trafficking in a dangerous drug on 16 November 2011.  At that time, he was unemployed but had to spend $140 daily for his heroin consumption.  Apparently the drugs worth over $12,000 found on the defendant were for social trafficking involving commercial elements, so that the profit or the gains for selling dangerous drug could then fund drugs intended to feed the defendant’s own addiction.

11.This court sees no justification at all for any departure from the guideline tariffs.  As the prosecution had rightly pointed out, the Court of Appeal in HKSAR v Wong Suet Hau and Another [2002] 1 HKLRD 69 remarked that:

“It is the very fact of supply or, in the case of couriers and storekeepers, making possible the supply to others, which in trafficking, whether for commercial gain or not, needs to be dealt with rigorously. Making fine distinctions between different forms of trafficking and the motives behind them will, in our view, only serve to undermine the core policy of providing consistent levels of sentencing for traffickers based on the weight of the narcotics being trafficked.”

Sentence

12.In the instant case, the quantity of pure heroin involved was slightly over 10 grammes.  

13.Having fully considered the background of the case and of the defendant, mitigation put forward by defence lawyer, prevalence and gravity of the offence and the sentencing guidelines laid down by the Court of Appeal, this court considers that the appropriate starting point would be 5 years’ imprisonment, i.e. 60 months’ imprisonment. 

14.However, the defendant is entitled to one-third discount from his guilty plea and have his sentence reduced to 40 months’ imprisonment.