HKSAR v. YU YUEN FAI

DCCC 82 /2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 82 OF 2012

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Reasons for Sentence

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Introduction

1.  The defendant is convicted on his own plea of:

(i) the 1^st Charge of trafficking in dangerous drugs, namely 21.2 grammes of cocaine and 8.54 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134; and

(ii) the 2^nd Charge of possession of dangerous drugs, namely 0.37 gramme of methamphetamine hydrochloride, 0.05 gramme of nimetazepam and 0.06 gramme of methadone, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134.

Facts

2.  The facts admitted by the defendant are as follows:

(i) At about 6:15 am on 15 November 2011, a team of police officers broke into Room 614, Hung Sing House, Hung Hom Estate, Kowloon (the “Flat”) in which they found the defendant and one Ms Chan.

(ii) DSPC 7176 was tasked to conduct observation on the ground floor in the vicinity that evening. At the material time, DSPC 7176 saw a black packet being thrown out of the Flat onto the podium of Hung Sing House. It was subsequently found that the black packet contained a number of plastic bags containing a total of:

(a) 14.26 grammes of cocaine; and

(b)0.37 gramme of methamphetamine hydrochloride.

(iii) Upon search of the Flat, the police found the following items from a moon-cake metal box placed in the sitting room:

(a) 3 plastic bags containing a total of 6.94 grammes of cocaine;

(b)3 plastic bags containing a total of 8.54 grammes of heroin hydrochloride;

(c) 8 tablets containing a total of 0.05 gramme of nimetazepam; and

(d)14 tablets containing a total of 0.06 gramme of methadone.

(iv) Near the moon-cake metal box, the police also found an inhaling device containing traces of methamphetamine, one roll of aluminium foil and a number of plastic bags. Further, the defendant was found in possession of $23,350.

(v) Under caution, the defendant admitted having purchased the aforesaid dangerous drugs at about 8 to 9 pm on 14 November 2011, and went to visit Ms Chan at about 10 pm on 14 November 2011. The defendant consumed the dangerous drugs in the Flat and placed some drugs in the moon-cake metal box. He threw the black packet out of the Flat when the police was gaining access into the Flat. He said all the dangerous drugs were for his own consumption and the inhaling device was used by him in consuming ice. He would use the aluminium foil to inhale dangerous drugs. He said the $23,350 found from his person was the money he won from mah-jong games.

(vi) The defendant possessed most of the dangerous drugs, the subject of Charge 1, for the purpose of trafficking.

The defendant’s previous conviction record and antecedents

3.  The defendant has eleven previous convictions resulting from seven cases. Out of his eleven previous convictions, there are three previous convictions of possession of dangerous drugs. He was last sentenced on 5 January 2012 for a charge of possession of offensive weapon and a charge of possession of dangerous drugs with a total sentence of 8 months’ imprisonment. He does not have any previous conviction of trafficking in dangerous drugs.

4.  The defendant was born in April 1979 and is now 32. He has received education up to Form 3 level.

Mitigation

5.  The main mitigation advanced by Mr Reading is that some of the dangerous drugs in the 1^st charge were for the defendant’s own consumption and some for social trafficking. In order to support the submission that some of the dangerous drugs were for the defendant’s own consumption, Mr Reading referred me to the Probation Officer’s Report and the DATC Suitability Report prepared for the hearing on 5 January 2012 for Kowloon City Criminal Case No.4420/2011.   

6.  The prosecution did not take issue on the aforesaid submission made by Mr Reading. Both parties agreed that a Newton enquiry was not necessary.

7.  Mr Reading fairly submitted that the defence could not tell what proportion of the dangerous drugs was for own consumption and what proportion was for social trafficking. In this connection, the defendant admitted in the Summary of Facts that most of the dangerous drugs in the 1^st Charge was for the purpose of trafficking. I will therefore sentence the defendant for the 1^st Charge on the basis that most of the 29.74 grammes of cocaine and heroin hydrochloride (being the aggregate of 21.2 grammes of cocaine and 8.54 grammes of heroin hydrochloride) was for the purpose of trafficking.

8.  Mr Reading also submitted two letters from Princess Margaret Hospital respectively dated 4 July 2008 and 13 March 2012 showing that the defendant’s father suffered from a severe head injury in August 2007 and that long term care is required. A letter from the Reverend Dr. Joseph Mok dated 21 March 2012 was also submitted to this court saying inter alia that the defendant had made attempts to quit using drugs but without success, and that the defendant “is a victim of a less than fortunate brought up and drug addiction itself”.  

9.  Mr Reading also referred me to R v Lau Tak Ming [1990] 2 HKLR 370, AG v Pedro Nel Rojas [1994] 1 HKC 342, HKSAR v Yip Pik Kwai [1999] 3 HKLRD 42 and HKSAR v Wong Suet Hau, Ice [2002] 1 HKLRD 69.

Sentencing authority

10.  The Court of Appeal in Pedro Nel Rojas held that the sentencing guidelines for trafficking in heroin laid down in Lau Tak Ming were applicable to trafficking in cocaine. Where the quantity of heroin or cocaine trafficked is between 10 grammes and 50 grammes, the sentence should range from 5 to 8 years’ imprisonment.

11.  Regarding the submission that the trafficking by the defendant was social trafficking, I quote paragraphs 15 and 16 of HKSAR v Chong Heung Sang CACC 221/2009 which reads:

“15. As for social trafficking, I would respectfully repeat what Stuart-More VP has said in Hii Siew Cheng:

‘98. The second matter is closely related to the first. We should perhaps repeat what was said in HKSAR v Wong Suet-hau [2002] 1 HKLRD 69 wherein this Court dealt with the approach to be taken to ‘social trafficking’. The Court of Appeal in that case said:

51. In our opinion, while some of the ‘social’ or ‘non-commercial’ trafficking cases involving small quantities of drugs can properly be regarded, when all the circumstances are examined, as falling into the lower end of the sentencing scale applicable to the dangerous drug in question, we are firmly of the view that this factor should not, in itself, provide a general basis for imposing a lighter sentence, than would have been imposed for commercial trafficking. The ‘friend’ who starts off or perpetuates another’s abuse of drugs, is as dangerous to the community as the commercial supplier of small quantities, who will generally traffic in drugs with those already addicted.”

16. Here, when sentencing the applicant, Wright J said:

‘… You accept, however, that not only did you traffic by importing these drugs, but that you, according to your version, intended to share them with others.

That type of distribution remains trafficking. Whether you are selling them or just doing what is erroneously, in my view, referred to as ‘social trafficking’ does not avail you.’”

12.  In HKSAR v Mok Cho Tik [2001] 1 HKC 261, the Court of Appeal said 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.

Sentence

13.  For the 1^st Charge, had the defendant been sentenced on the basis that the entire 29.74 grammes of cocaine and heroin hydrochloride were for the purpose of trafficking, the starting point would have been 6½ years’ imprisonment.

14.  I accept, as it is not disputed by the prosecution, that some of the dangerous drugs were for the defendant’s own consumption. I bear in mind that possession of dangerous drugs itself carried a term of imprisonment and that there was the actual risk of dissemination disclosed by the facts of this case: Wong Suet Hau and HKSAR v Minney [2011] 3 HKLRD 556. I reduce the starting point for the 1^st Charge to 6 years and 1½ months’ imprisonment.

15.  The defendant is entitled to 1/3 discount for his guilty plea. I have full sympathy to the health condition of the defendant’s father but drug trafficking offences do call for substantial custodial sentence as deterrence. Apart from the defendant’s guilty plea, I do not consider there being any other valid mitigating features justifying further reduction in sentence. The sentence for the 1^st charge is therefore reduced to 49 months’ imprisonment.

16.  As for the 2^nd charge, I adopt a starting point of 6 months’ imprisonment: HKSAR v Chan Sai Hap HCMA 1274 & 1275/2004. I give him 1/3 discount for his guilty plea. There being no other valid mitigating features justifying further reduction in sentence, the defendant is sentenced to 4 months’ imprisonment for the 2^nd charge.

17.  For totality, I order the sentences for the 1^st charge and the 2^nd charge to run concurrently, thus making a total of 49 months’ imprisonment.

18.  I note from the Probation Officer’s Report prepared for the hearing on 5 January 2012 for Kowloon City Criminal Case No.4420/2011 that the 8 months’ imprisonment imposed in that case related to offences committed in August 2010. As the defendant did not answer bail until 15 November 2011 when he was arrested in the present case, the case committed in August 2010 could only be dealt with after November 2011.  

19.  As the present case and Kowloon City Criminal Case No.4420/2011are separate and distinct cases, I order that the sentence in the present case will run consecutively with the sentence in Kowloon City Criminal Case No.4420/2011.