HKSAR v. LIN HUNG KA

DCCC991/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 991 OF 2012

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Reasons for Sentence

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

2.  The facts are very straightforward.  On 16 August this year, on King’s Road, North Point, the defendant was stopped and searched by police officers.  Upon search two transparent resealable plastic bags containing heroin was found in his right front pocket of his trousers.  Upon further search there were other items in his possession, and those included lighters, nail clippers, plastic sheets, three mobile phones.

3.  Under caution the defendant admitted that he was in possession of the heroin and it was for his own consumption. 

4.  Government Chemist Certificate determines that the powder in the packets were as follows: 14.06 grammes of a mixture containing 9.36 grammes of heroin hydrochloride. 

5.  In a subsequent record of interview, again under caution, the defendant explained to the police that he would divide the heroin into 80 smaller pellets using the white plastic sheets in his possession, that he could sell each pellet for a HK$150.  He had previously purchased this quantity of heroin for $8,000 from an unknown man near the Yau Ma Tei Methadone Clinic.  The police have determined the street value of that quantity at that time to be just under $7,000. 

6.  The defendant’s best mitigation today is his plea of guilty.  The defendant is not a man of clear record.  He has seven previous convictions, of which four are drug related.  The last conviction relating to a possession of dangerous drugs was in 2007 whereby he was sentenced to a drug addiction treatment centre order.  He has never been convicted of trafficking dangerous drugs.  In the defendant’s antecedents he has told the police that he has been a heroin drug addict for 10 years. 

7.  The defendant is a 38-year-old man who is married, but whose wife and children live in Mainland China.  He survives on public assistance, as well as collecting recyclable rubbish to supplement that income.  He has no fixed place of abode.  He lives under a footbridge.

8.  In mitigation today it has been put forward that some of the dangerous drugs he would take himself.  It has also been explained that he had the $8,000 to buy the dangerous drugs because he received extra public assistance due to a government policy reward, so to speak, earlier this year. 

9.  Defence counsel has not quantified how much of the dangerous drugs in this case he would use for his own consumption.  In answer the prosecutor has pointed out that the defendant would sell this amount of dangerous drugs for a profit and use that profit to buy cheaper dangerous drugs, instead of taking these drugs for his own consumption.  Defence counsel has a point that drug addicts have needs, and if necessary he would take dangerous drugs in his possession. 

10.  I have referred myself to the authority of HKSAR v Wong Suet Hau, Ice, CACC366/2000.  That authority deals with two appeals, with a similar submission made on behalf of both appellants that some of the dangerous drugs in their possession was for self-consumption and not all for trafficking.  That authority sets out certain factors the court should consider when dealing with such a submission. 

11.  In this case I accept the defendant is a heroin addict and has been for some time.  I accept that some of the dangerous drugs in his possession may have been taken for his own use and will bear it in mind when considering the appropriate starting point.  However, I also bear in mind that possession of dangerous drugs in itself can attract a term of imprisonment, as well as the latent risk factor.  And I have referred myself to HKSAR v Mok Cho Tik 2001 1 HKC 261. 

12.  Trafficking heroin has guidelines, and according to the R v Lau Tak Ming 1992 HKLR 370, up to 10 grammes of heroin would attract a 2 to 5 year term of imprisonment.  Ten to 50 grammes would attract a 5 to 8 years term of imprisonment.  In this case, I repeat, the purity of the heroin is 9.36 grammes.  Mathematically speaking, a 5 year term of imprisonment could be appropriate. 

13.  I bear in mind the defendant’s plea today, he has previous convictions but none similar to trafficking dangerous drugs, his background in mitigation, and the possibility a small amount could be for self consumption, but I am not convinced a significant amount of this heroin would be for his own use. 

14.  Defendant, please stand up.  After careful consideration of those factors I have just referred to I find a starting point of 4 years and 3 months appropriate.  You have pleaded guilty and are entitled to a discount of one-third for that plea.  Accordingly, the defendant is sentenced to 2 years and 10 months for this charge.