HKSAR v. YU HON KWONG (M)

DCCC459/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 459 OF 2016

--------------------

--------------------

---------------------------------

REASONS FOR SENTENCE

---------------------------------

1.  The defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

Facts

2.  About 1235 hours on 3 March 2016, a team of plain-clothes police officers noticed the defendant entering the Tung Chau Street Park in Shum Shui Po in a furtive manner.  They attempted to intercept the defendant for enquires but the defendant immediately tried to flee.  The officers managed to apprehend the defendant and conducted a body search on him.  As a result, the defendant was found to have in his possession 100 pellets of dangerous drugs which were subsequently confirmed by the Government Chemist to be 15.39 grammes of a mixture containing 12.66 grammes of heroin hydrochloride.  The street value of the drugs was approximately HK$11,389.

3.  The defendant was arrested for trafficking in the dangerous drugs.  Under police caution, he said that he possessed the drugs for his own consumption.  However, he pleaded guilty today to the trafficking charge and admitted that he trafficked in the drugs in question.  Mr. Hung, learned counsel for the defendant, confirmed that the defendant admitted trafficking in all of the dangerous drugs seized.

Criminal record

4.  The defendant has 35 previous convictions involving a total of 48 offences, including two charges of possession of dangerous drugs for the purpose of unlawful trafficking in April and May 1987, and 3 charges of trafficking in dangerous drugs with two of the sentences imposed in March 1994 and the remaining one in December 2003.  He was last sentenced in May 2016.  He was sentenced to 4 months’ imprisonment for possession of dangerous drugs.  He was discharged from prison on 10 June 2016.

Personal and family background

5.  The defendant is now 62 years old.  He was born in Hong Kong and was educated up to Form 3.  He had been a construction site worker for 1½ years earning about $20,000 a month before he became unemployed and had to live on comprehensive social security allowance in the sum of $4,750 each month. He is a divorcee. He lives alone in Hong Kong.  He has a son now aged 31.  Although his son is now working in Beijing, the defendant maintains regular contact with him.  The defendant says that he has been addicted to heroin since the age of 15.

Mitigation

6.  Mr. Hung asked this Court to take into account the defendant’s guilty plea and his health problem in sentencing the defendant.  According to Mr. Hung, the defendant is suffering from blood vessels problem and has to receive regular medical treatment.

Reasons for sentence

7.  Trafficking in dangerous drugs has always been regarded by the courts in Hong Kong to be a very serious offence.  For this reason, even if the amount of the dangerous drug being trafficked is small, the usual sentencing option is still one of imprisonment.  It is only in cases where the facts are unusual or where exceptional mitigating factors exist that this sentencing option will not be used.

8.  Having considered the facts of this case, the background of the defendant including his criminal record, the sentencing tariff laid down by the Court of Appeal, and the absence of any exceptional mitigating circumstances, I find that the only appropriate sentence to be imposed on the defendant is a term of immediate imprisonment.

9.  As to the quantum of the sentence, the Court of Appeal has laid down the tariff that for trafficking between 10 grammes and 50 grammes of heroin hydrochloride, the starting point of the prison term to be imposed after trial should be 5 to 8 years: The Queen v Lau Tak Ming & Others [1990] 2 HKLR 370.  This sentencing tariff will apply not only to cases involving actual trafficking but also to cases involving possession of dangerous drugs for the purpose of trafficking. 

10.  In the present case, the total quantity of heroin hydrochloride was 12.66 grammes.  Applying the sentencing tariff to this case, I adopt a starting point of 60 months’ imprisonment.

11.  I have considered whether I should adjust the starting point upwards because of the defendant’s previous trafficking record.  Nevertheless, in light of the fact that he had not been convicted of a trafficking offence since 2003, I have decided not to do so.  There is no other ground to increase the sentence.

12.  As to the mitigating factors, the defendant’s health problem relating to his blood vessels does not have the effect of reducing his sentence. 

13.  The only real mitigation is the defendant’s guilty plea.  In line with the usual practice, his sentence is reduced by one-third to reflect his plea.  There is no other ground upon which his sentence can be reduced further.

14.  For these reasons, the defendant is sentenced to serve a term of 40 months’ imprisonment.