HKSAR v. So Kwok Hung

DCCC 567/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 567 OF 2013

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Reasons for Sentence

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1.The defendant pleaded guilty to one count of trafficking dangerous drugs, contrary to section 4(1) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.Particulars of the offence are that on 12 April 2013, in a residential home in Sheung Shui, the defendant unlawfully trafficked 8.68 grammes of a mixture containing 6.93 grammes of heroin hydrochloride and 140 tablets containing a total of 1.90 grammes of Midazolam.

3.The facts are that on that date in the afternoon, a team of police officers were in the vicinity of a village, Mun Hau Tsuen.  At about 5.30, the police officers spotted the defendant returning to a village house at No. 3, Lane 8 of that village.  Either the defendant was a target or the premises was the target because the police had a search warrant with them.  The defendant was intercepted by these police officers. Their information was correct because following a house search, drugs and paraphernalia were found in the defendant’s bedroom.  The heroin found was packed into 46 small resealable transparent plastic bags.  According to the defendant who packed these plastic bags, each packet weighed approximately 0.20 of a gramme.  The midazolam tablets were found in two separate plastic bags. There was also paraphernalia found that is normally associated with packaging dangerous drugs into individual bags such as electronic scale, a knife, scissors, there was also some cash and a lighter. 

4.The defendant was arrested and under caution made an admission that the drugs belonged to him and some he would sell and some he would consume himself.  The paraphernalia the police found was used for packaging drugs into smaller packets for sale.  He clearly had packed all of the dangerous drugs.  He told the police he bought the drugs the day before for $7,600.  He then repacked them into 70 packets and of those 70 packets, he had already sold 12 packets.  Each packet was worth $210.  He had also already sold five tablets of midazolam at $50 a tablet.  He told the police that he had himself already consumed 12 packets of heroin and 10 tablets.  He told the police that his own drug habit meant he would consume about 1 gramme a day as well as two to three midazolam tablets a day.  That would indicate a deep-root addiction.

5.The defendant is not a man of clear record, he has many previous convictions.  He has one previous similar, a trafficking dangerous drug conviction in 2003.  He has several convictions for possession of dangerous drugs.  He has many convictions for offences of dishonesty.  He has been sent to Drug Addiction Treatment Centre on several occasions.  He told the police, and it is in his antecedent, that he is a drug addict. 

6.Defendant is 31 years old and divorced.  The premises where he was arrested was where he was cohabiting with his girlfriend.  His best mitigation today is his plea of guilty.

7.This is a case of mixed drugs, there are two types of drugs in the one charge.  Obviously, heroin is the most potent, serious and dangerous drug here.  There are guidelines where trafficking heroin is concerned and I refer to R v Lau Tak Ming [1990] 2 HKLR 370.  In that authority, the Court of Appeal held that where between nought to 10 grammes of heroin is trafficked, that would attract between 2 to 5 years’ imprisonment. In this case, I repeat there is 6.93 grammes of heroin hydrochloride. 

8.Where midazolam is concerned, where under 500 grammes of midazolam is trafficked, the sentence would be up to the court’s own discretion.  Here there is 1.90 grammes, not a significant amount.

9.I take the combined approach where a charge involves more than one type of dangerous drug.  I calculate what would be the appropriate starting point for the more potent and serious dangerous drugs first. I referred myself to HKSAR v Wong King Kau [2010] 4 HKC 443.  I accept the defendant is a drug addict and therefore some of the dangerous drugs may be for his own use, so I will reduce the starting point to reflect this.  Mathematically speaking, nearly 7 grammes of heroin would attract a starting point of 4 years and 3 months. 

10.After considering the mitigation put forward and the relevant factors, I will reduce that and take a starting point of 3 years and 11 months.  I take into account the relatively small quantity of midazolam and I will add one month to the starting point of 3 years and 11 months.  That would mean a starting point for this charge of 4 years.

11.Defendant has pleaded guilty and is entitled to a discount of one-third.  Accordingly, the defendant is sentenced to this charge to a term of imprisonment of 2 years and 8 months.