HKSAR v. Leung Chyun Chiu

DCCC382/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 382 OF 2012

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Reasons for Sentence

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The Charge

1.The defendant pleaded guilty to a charge of trafficking in a dangerous drug under section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. 

The Facts

2.The facts of the case can be summarised as follows.  At around 6.54 pm on 24 February 2012, while the police was conducting an anti-narcotic operation at On Yat House, Shun On Estate, Sau Mau Ping, Kowloon, Hong Kong, they saw the defendant walking towards staircase No. 3 on the 18th Floor of On Yat House.  They intercepted him and conducted a body search.  As a result, a resealable transparent plastic bag with 28.04 grammes of a mixture containing 21.75 grammes of heroin hydrochloride was found in the defendant’s front right trousers pocket.  The defendant was arrested for trafficking in a dangerous drug.  At the time of arrest, he was in possession of a mobile phone and cash of HK$85.

3.Under caution, the defendant admitted that he bought the said drug for $8,000, $6,000 of which came from his casual job salary and $2,000 came from his savings of Comprehensive Social Security Scheme payment.  And just before his arrest, he was on his way to 18th floor of On Yat House for sharing the drug with his friend, and he had no intention to sell the drug for a monetary reward.

4.At the material time, D possessed the drug for the purpose of trafficking.

The Defendant’s Background and Mitigation

5.The defendant, aged 27, has started taking methamphetamine and heroin since the age of 15.  He has been unemployed most of the time since 2004 but only worked as a warehouse worker with a monthly salary of $6,000 for two months in October 2011 and was then jobless again.  He received $3,100 per month as CSSA payments when he was unemployed.

6.The defendant has 12 previous convictions but none were dangerous-drug-related.  His first conviction was at the age of 17. Since then, the defendant was sent to prison for his misdeeds almost every year.  His last conviction was in May 2011 whereby he was ordered to serve a total sentence of 8 months’ imprisonment.  He was released in October 2011. Very soon after his release from the prison, he committed the present offence of trafficking in a dangerous drug which was worth $8,000.  The defendant claimed that he had used his salary from his casual job and his savings of CSSA to purchase the drug.  He intended to share the drug with his friend with no monetary reward. 

7.This court observes that the defendant did not have a stable working pattern nor real employment.  Most of, if not all the time, he was jobless since 2004 until last year that he was employed for only two months.  His monthly CSSA payment was only $3,100.  Such sum would, if not insufficient, barely be enough for his personal expenses, not to say to feed his drug addiction.

8.28.04 grammes of a mixture containing 21.75 grammes of heroin was a sizeable and valuable quantity especially for someone like the defendant with no real employment.  Therefore, it is doubtful, not only whether the defendant has his CSSA in surplus, but also whether he was generous enough to share the expensive drugs with his friend without any profit.

9.Nevertheless, the defence lawyer expressed that the defendant was unable to tell how much of the said drug was intended for sharing with his friend.  The defence would not contend that a significant portion of the drug was intended for self‑consumption so as to seek a meaningful reduction in sentence.

Sentencing Guidelines

10.The Court of Appeal in R v Lau Tak Ming & Another CACC230 of 1989 laid down sentencing tariffs for trafficking in heroin after trial.  For 10 to 50 grammes of heroin, 5 to 8 years of imprisonment is warranted.

11.Although the defendant has no similar conviction in the past, such factor cannot be considered as a reason for reduction of sentence.  Drug trafficking is a very serious and prevalent offence and a deterrent sentence is always called for.

Sentence

12.Having fully considered the circumstances of the case and those of the defendant, the mitigation advanced by the defence lawyer, the prevalence and gravity of the offence, and the sentencing tariffs set out by the Court of Appeal, this court would adopt a starting point of 66 months’ imprisonment for 21.75 grammes of heroin.  The defendant is entitled to one‑third discount for his guilty plea so as to reduce the sentence to 44 months’ imprisonment.

13.This court now orders a sentence of 44 months' imprisonment.