HKSAR v. Chiu Sai on

DCCC 69/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 69 OF 2013

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Reasons for Sentence

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1.Defendant pleads guilty to one count of possessing dangerous drugs. It is 13.87 grammes of a mixture containing 10.19 grammes heroin hydrochloride.

2.On 20 October 2012, in the small hours, the defendant was walking with another man in the street furtively.  Police officers intercepted them.  Nothing suspicious was found on the other man but police found one bag of heroin in defendant’s pocket, the subject matter of the charge.  Defendant had a mobile phone with him and he also had only $10 with him. 

3.Under caution, defendant said he bought the drugs for his own consumption.  He later further told police that he bought it on the previous night for $9,500 for his own use for a month.  He said he would take about 0.5 gramme daily.  When police intercepted him in the street, he was on his way to have a drink with a friend. 

4.The street value of the drugs in question was estimated to be around $9,300. 

5.Defendant is now aged 34.  He has four previous convictions.  His last two convictions were in 1996 relating to possession of dangerous drugs and smoking instruments.  He was sent to DATC then. 

6.Counsel has prepared his mitigation in detailed writing.  He also makes oral submission in court.  He submits letters written by defendant himself, his mother and his girlfriend.  In the letters, defendant says he is remorseful and will reform himself.  The girlfriend says the same and states that they would have got married but for defendant’s arrest in this case.  She says defendant is a good man.  The mother also says defendant is a good son and pleads mercy for him.

7.Counsel says defendant has been a self-employed goods van driver since 2012.  He lived with his mother, who does not enjoy good health.  Defendant started taking dangerous drugs at the age of 17.  In 1996 he was sent to DATC and spent 9 months there.  Unfortunately, defendant became addicted again later.  At the time of arrest in this case, he consumed about 0.5 gramme of heroin mixture daily.   

8.Counsel states in his written mitigation that defendant got about $9,500 from his job as driver.  He decided to buy the drugs in question enough for a month’s use.  Such bulk purchase would save him about $3,000.  When police intercepted him in the street, he was on his way to meet a friend for a drink.   

9.Counsel says defendant has been detained for more than 5 months since his arrest in this case.  He is no longer dependent on drugs now.  The DATC report confirms the same. 

10.Counsel says the purity of heroin is only 10.19 grammes.  He cites the case of Mok Cho Tik CACC165/2000.  In paragraph 17 of that case, the Court of Appeal says that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months. Counsel says in the present case I should consider the middle point of such range as the starting point for sentence.

11.On the issue of latent risk, counsel submits that the quantity of drugs in question is not a large one, defendant has no previous trafficking records, there is no evidence that he has any trafficking instrument with him, he was in employment then.  Counsel says the latent risk is basically non-existent.

12.On this issue, prosecutor does not seek to argue otherwise.  She fairly agrees with defence counsel’s submission.

13.I agree with both of them.  The quantity of drugs in question is indeed not a large one.  The mixture is 13.87 grammes containing pure heroin hydrochloride of 10.19 grammes.  It is all in one bag. There is no evidence to suggest that defendant had any tendency of giving or selling any part of the drugs to anyone else.  He was in employment when he was arrested.  He has no previous trafficking records though he had been addicted to drugs for a number of years. 

14.In the circumstances, I agree with counsel’s submission that any latent risk is non-existent.  In the circumstances, I also agree with counsel that the appropriate starting point for sentence should be 15 months of imprisonment. 

15.Defendant pleads guilty to the charge.  He is entitled to one-third discount, so I sentence him to 10 months’ imprisonment. This is the only sentencing option available in the present case because DATC treatment is no longer necessary for defendant because after 5 months of custody, he is free of his addiction now.  Of course, other lenient sentencing options like fine, probation, etc, are out of question, given the facts of the case and defendant does not have a clear record.  So I sentence him to 10 months’ imprisonment.