HKSAR v. Cheng Chun

DCCC 750/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 750 OF 2012

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of trafficking in 8.11 grammes of a mixture containing 5.84 grammes of heroin, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134 and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L of the Criminal Procedure Ordinance, Chapter 221.

2.In summary at about 6.18 a.m. on the 18th June this year the police intercepted the defendant at the junction of Shanghai Street and Public Square Street in Yau Ma Tei.  Upon being told the police suspected he was in possession of dangerous drugs the defendant took out from inside his trousers 40 packets containing the heroin. 

3.The defendant appeared in the Kowloon City Magistracy the same day when he was granted court bail to appear on the 13th August.  The defendant duly appeared in court when the case was further adjourned to the 27th August.  The defendant again attended court on the 27th August when the case was transferred to this court for plea on the 14th September.  The defendant failed to appear in court on that day and a warrant for his arrest was issued.  The defendant surrendered to the police four days later on the 17th September and was brought to this court the following day, since which time he has been remanded in custody. 

4.In passing sentence I have carefully considered everything said by Mr Chan, in particular that the defendant whilst in custody has suffered from pain.  The defendant was diagnosed with cancer in 2005 and whilst now in remission he fears a recurrence of the cancer.   

5.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 up to 10 grammes is between 2 and 5 years imprisonment.

6.The Court of Appeal further stated that in determining sentence a court may properly take into account any previous history of narcotic offences.  The defendant has a long criminal record including eight convictions relating to dangerous drugs, two of which are for trafficking in 1985 and 2006.  The last conviction for drugs was for the trafficking in 2006 when the defendant was sentenced to 3 years and 4 months imprisonment.  

7.In all the circumstances I am satisfied the proper starting point after trial for 5.84 grammes of heroin is 4 years imprisonment. 

Own consumption

8.The defendant says that one-quarter to one-third of the drugs were for his own consumption.  In determining whether the defendant possessed part of the heroin for his own consumption I have considered the decision in HKSAR v. Wong Suet-hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34.

9.Clearly from the criminal record and antecedents the defendant is a long term drug addict.  The defendant told the police he spent between HK$300-400 per day on drugs.  This would mean the defendant needed to spend between HK$2100-2400 per week to feed his drug addiction.  The defendant was however unemployed and relied on CSSA of $5000 per month, which clearly was insufficient to support his drug habit.

10.Further the drugs were not found at his home, the defendant having been arrested on the street.  When interviewed on video the defendant said he bought the drugs the day before.  From this one can infer the defendant was at the time carrying the heroin for sale.  In court the defendant says he was mistaken about the time and now says that he bought the drugs shortly before he was arrested.

11.Being a long term drug addict I am prepared to accept the defendant may have kept a small amount for his own use but not as much as one-quarter to one-third.  Trafficking in drugs to feed one’s own addiction however is not itself a mitigating factor and as said in Wong Suet-hau the fact some of the drugs may be for one’s own consumption may only make slight difference to sentence.  In all the circumstances      I am satisfied a reduction in the starting point of 3 months imprisonment to one of 3 years and 9 months is appropriate.

Failing to surrender

12.The defendant explains that he failed to attend court because he had taken drugs earlier that morning and consequently overslept.  This is no excuse for not attending court. I am satisfied a short term of imprisonment is appropriate together with estreatment of the bail monies.   I am satisfied that the proper starting point after trial is 21 days imprisonment which I reduce to 14 days by reason of the plea of guilty and further reduce to 7 days imprisonment on account of the defendant surrendering to the police.  I further order estreatment of the defendant’s bail money in the sum of $1,500.

13.Those who abscond from bail cannot be said to have entered timely pleas.  However taking into account that the defendant surrendered himself to the police within four days after he should have appeared in court, I am satisfied that the estreatment of the defendant’s bail money together with the short prison sentence is sufficient punishment for failing to attend court without reducing the one-third discount for pleading guilty to the charge of trafficking in a dangerous drug.

Ill-health

14.Whilst one has sympathy with anyone suffering from serious illness, in particular cancer, I am satisfied in the circumstances of this case this does not amount to exceptional circumstances to reduce an otherwise appropriate sentence (see for example HKSAR v Tse Tat-fung & others CACC 167/2008 at paragraphs 359-366).  Clearly the Correctional Services are, at present, in a position to treat the defendant arrangements having already been made for the defendant to see a specialist.  If the health of the defendant deteriorates whereby the Correctional Services can no longer properly take care of him the defendant can petition the Chief Executive for clemency.

15.Giving the defendant full credit for his plea of guilty the defendant is convicted and sentenced to 2 yearsand 6 months imprisonment on charge 1 and the 7 daysimprisonment on charge 2, which sentence is to be served consecutive to the sentence on charge 1.