HKSAR v. Ho Pui Kuen

DCCC 734/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 734 OF 2012

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of trafficking in 47.27 grammes of a mixture containing 17.57 grammes of heroin and 2.67 grammes of a crystalline solid containing 2.59 grammes of methamphetamine hydrochloride (“ice”), contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2.In summary at 12.40 p.m. on the 6th June this year the police intercepted the defendant as she was seen leaving premises situated at the mezzanine Floor, Tai Wo Building, No 51 Wai Yan Street in Tai Po.  Upon search of the premises the police found inside a room, which the defendant unlocked, four re-sealable plastic bags containing the heroin and one re-sealable plastic bag containing the ice.

3.Also found in the same room was paraphernalia suitable for trafficking in dangerous drugs, namely four electric scales, a roll of red tape, a straw and a batch of empty re-sealable bags.  

4.The defendant was arrested and under caution admitted the drugs belonged to her.  In a subsequent interview the defendant said she packaged the drugs, which she would sell.   

5.In passing sentence I have carefully considered everything said by Mr Lai, in particular how the defendant resumed taking drugs after the tragic death of her husband in 2009.  Unable to support her addiction the defendant resorted to selling drugs.  I also take into account the defendant has two young children who are currently under the care of the Social Welfare Department.

6.The defendant has a criminal record including one similar conviction for trafficking in dangerous drugs in 2002 when she received a sentence of 15 months imprisonment and three subsequent convictions for possession of drugs, the last in 2007 when she was sent to the DATC.

7.In R v LAU Tak-ming[1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is between 10 and 50 grammes falls within the range of 5-8 years.  

8.In Attorney General v CHING Kwok-hung [1991] 2 HKLR 125 the Court of Appeal laid down guidelines for trafficking in ice.  Where the quantity of narcotic is up to 12 grammes sentence upon conviction after trial is between 3 and 7 years imprisonment.  In HKSAR v CAPITANIA Edwin F. CACC 28/2004 the Court of Appeal accepted that the reference to 12 grammes was a typographical mistake and should read 10 grammes. 

9.Adopting the ‘individual’ approach the proper starting point after trial for trafficking in 17.57 grammes of heroin would be 5 years and       6 months imprisonment and for trafficking in 2.59 grammes of ice would be 4 years imprisonment.   This would result in a starting point of 9 years and 6 months imprisonment, which clearly is excessive for if all the drugs were ice the starting point would not exceed 7 years and 6 months imprisonment.

10.By far the largest quantity is however that of heroin and had all the drugs been heroin the starting point would not exceed 5 years and      9 months imprisonment. However sentence must reflect that the second drug was not a very small quantity of ice, and the fact the defendant has been convicted of trafficking in drugs before (see HKSAR v Yim Hung-lui, Ricky CACC 266/2011).  I am satisfied an overall starting point of 6 years imprisonment is appropriate. 

11.Giving the defendant full credit for her plea of guilty she is convicted and sentenced to 4 yearsimprisonment.