In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the nature and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on his behalf.
The facts of the case are simple. The defendant was stopped at Lo Wu Control Point when he was returning to Hong Kong. It was then found that he had concealed dangerous drug in his body. In the hospital, he discharged three pellets each containing heroin hydrochloride. One of these pellets was smaller than the other two.
The defendant left for Macau at midnight and returned to Hong Kong at 3.38 pm. He then went to the mainland via Lok Ma Chau at 7.34 pm and returned at 10.19 pm.
Under caution, he said he was drug-dependent. He bought the two packets of drugs at Shenzhen from a friend. He inserted the drug into his anus and brought it to Hong Kong so that he could consume it at home. It would last his consumption for one month. The smaller packet contained the leftover after he had consumed part of the drug in Hong Kong. He took it to the mainland in case he had a need, he would consume it.
The defendant is 59 years old. He had worked as a construction worker but since 1978, he has been unemployed and relying on CSSA. He is a drug addict. He was married twice but has lost contact with the two wives and his sons for years.
The defendant has a lengthy criminal conviction record. His first conviction dated back to 1966 when he was 12 years old. Since then, he was convicted on 53 occasions. He was convicted for the offence of trafficking in a dangerous drug in 2002, 2006 and 2011. He was also convicted on numerous occasions for the offence of possession of dangerous drug. In the last decade, he had not committed offence of other nature except for gambling. However, he had committed offences like robbery, copyright offence and assault and POOW before.
In mitigation, learned counsel for the defence informed the court that it is his instruction that the whole quantity of the dangerous drug was for the defendant’s own consumption. He produced a medical report which supported the assertion that the defendant was a long-term drug abuser. He also produced a report from the Correctional Services Department which says that urine specimen was collected from the defendant on 3 September, three days after the arrest. The test yielded positive result to opiate but negative for amphetamine, benzodiazepine and cannabis. I was informed that heroin is a form of opiate.
The dangerous drug involved was heroin, the total narcotic content was 45.5 grammes.
The Court of Appeal suggested, in the case of Queen v Lau Tak Ming [1992] HKLR 370, that a sentence of 5 to 8 years’ imprisonment should be considered for trafficking in heroin if the narcotic content is between 10 and 50 grammes. In all the circumstances, I do not find there are good grounds to depart from the tariff.
I have to take into account that the defendant had taken the dangerous drug into Hong Kong and, for this reason, the starting point should be enhanced by 6 months. In my judgment, the starting point should further be enhanced by another 6 months in the light of the previous record of the defendant.
As to the assertion of own consumption, I had indicated that I am not prepared to accept the assertion that the whole quantity was for the defendant’s own consumption, just in reliance on submission by counsel. The defendant elected not to testify on this matter. It is, of course, his right. In considering the matter, I bear in mind the Court of Appeal’s decision in Hong Kong SAR v Wong Suet Hau, CACC 366/2000.
In the circumstances, judging from the background of the defendant, his means, in particular that he was relying on CSSA for his living, the quantity and estimated value of the dangerous drug, I do not accept that the whole quantity of the drug was for his own consumption.
However, taking into account the previous dangerous drug-related record of the defendant, as well as the existence of a packet of smaller quantity of heroin in his body, I am prepared to accept, without conducting a Newton hearing, that a part of the drug was for that purpose but the proportion would have been extremely small. Besides, I cannot ignore the self-evidently high latent risk involved. For this matter, I am of the view that the starting point can appropriately be lowered by 6 months.
In all the circumstances, I consider an ultimate starting point of 7½ years appropriate.
The defendant pleaded guilty and is, for this reason, entitled to a one-third discount. In my judgment, taking into account the whole circumstances, in particular what counsel said on the defendant’s behalf, this is the extent of discount the defendant is entitled to.
The defendant please stand up. For these reasons, I sentence you to an imprisonment term of 5 years.