HKSAR v. HU GUOQUAN

DCCC 883/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 883 of 2013

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

2.  You admitted that on 13 July at Tai Po Road in Sham Shui Po, you unlawfully trafficked in 28.07 grammes of a mixture containing 18.39 grammes of heroin hydrochloride.

3.  On the day in question, at about 11.17 pm on Tai Po Road, a police officer saw you walking hurriedly towards his direction.  As you kept looking around and acted furtively, you were intercepted by the officer. 

4.  Upon a body search, the drugs were found in your right front pocket.  They were contained in one plastic packet. 

5.  Under caution, you admitted that you helped Uncle Fei to bring the white powder as you just wanted to earn for a few shots of white powder shot.  It transpired later in your video-recorded interview that you had in fact gone to purchase these drugs for Uncle Fei and were then going to take them back and give them to Uncle Fei.  Thereafter you were to get a part of the drugs.  However, after you had received the drugs and were going to give them to Uncle Fei, you were arrested.

6.  The estimated street value of these drugs was in the sum of $23,186. 

7.  You are 50 years of age and have three previous convictions.  One of them is related to drugs, possession of dangerous drugs, to which you were sentenced to probation for 12 months in 2009.  Since that date you have not committed any further offences.

8.  I have taken into account the mitigation put forward by Miss Florence Tang, your solicitor, and a letter of mitigation submitted by your daughter and wife.

9.  I am informed by them and Miss Tang that the reason for you committing this offence is because you started to take drugs again to relieve your back pain which you had received from work.

10.  You have obviously disappointed your family upon your return to taking drugs and in the commission of this offence.

11.  You were a decoration worker at the time of this offence.  You had pleaded guilty immediately upon being arrested and cautioned. 

12.  Miss Tang has submitted to me the cases of R v Lau Tak Ming and HKSAR v Cheuk Kin Man CACC294/2009.  In that case Miss Tang submitted that the Court of Appeal held that the starting point with a similar quantity of drugs of 5 years 5 months was appropriate if no part of the drugs were for the defendant’s self-consumption, but if part were for self-use, then the appropriate starting point should be 4 years and 6 months, that is approximately a 17 per cent discount. 

13.  After that case in the Court of Appeal case of HKSAR v Chow Chun Sang CACC135/2011, at paragraph 19 of that case the court held that the discount in sentence would depend on a number of circumstances.  If part of the drugs were intended for the trafficker’s own consumption, that discount should fall somewhere between 10 and 25 per cent of the basic starting point.

“In determining the extent of discount in a particular case, the court should have regard to factors including the total quantity of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated and the background and criminal record of the defendant.”

14.  I have borne all these factors in mind.  The drugs in this case was packeted in one single packet.  Defendant you have said that part of the drugs was for your own use, and when you delivered them to Uncle Fei, you would receive part.  I note the drugs were not packeted in separate packets and these drugs would therefore have to be separated for your own use. 

15.  This is your first offence of trafficking.  The drugs involved were heroin and your gain was the drugs, part of it you say was for your own consumption.

16.  In these circumstances, defendant, I consider that a 10 per cent discount would be appropriate as part of the drugs were for your own consumption.

17.  Defendant, had I convicted you after trial, the appropriate starting point for 18.39 grammes of heroin hydrochloride would be 5 years 6 months’ imprisonment or 66 months’ imprisonment.  Taking 10 per cent from that, would be about 6 months.  I therefore discount a term of 6 months’ imprisonment.  I therefore take a starting point of 5 years’ imprisonment.  Giving you full credit for your plea of guilty, that term shall be reduced to one of 3 years and 4 months’ imprisonment to which you shall be so sentenced.