HKSAR v. LUI HUNG, RED

DCCC 636 & 969/2018
(Consolidated)

[2019] HKDC 1024

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 636 & 969 OF 2018

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REASONS FOR SENTENCE

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Introduction

1.  The defendant is convicted upon her own guilty plea of the first charge of trafficking in a dangerous drug and the second charge of possession of a dangerous drug.  The dangerous drug involved in the first charge was 22.70 grammes of heroin hydrochloride, and that involved in the second charge was 0.12 gramme of heroin hydrochloride.

Facts

2.  At about 8:24 pm on 27 March 2018, WPC 17987 (“PW1”) intercepted the defendant near the junction of Mong Kok Road and Sai Yeung Choi South Street, Mong Kok, Kowloon.

3.  As the defendant was trying to hide something behind her, PW1 asked the defendant to show her hands. Instead of following PW1’s request, the defendant threw one tissue paper containing one transparent resealable plastic bag containing suspected dangerous drug (“Drug A”) onto the ground.  The defendant was immediately arrested.  Under caution, the defendant said the heroin was for her own consumption.

4.  Upon further search on the defendant, one piece of folded paper was found from the defendant’s right front pocket of her trousers.  The paper contained traces of suspected dangerous drug (“Drug B”).  Under caution, the defendant said it was for her self-consumption.

5.  The police conducted house search at the defendant’s residence, but no drug paraphernalia (inhaling tools/electronic scale/empty bags, etc) was found.

6.  In a video-recorded interview, the defendant said inter alia:-

(i) She bought the drugs from Ah Kai in a public toilet at Mong Kok Road on the evening of 27 March 2018;

(ii) She had just collected her wages of HK$21,000 being her one and a half months’ income, and she had spent HK$20,000 on buying the drugs from Ah Kai;

(iii) Having bought the drugs, she immediately consumed some of them with the use of the seized folded paper; but she had not finished consuming her dose and so she kept the seized folded paper in her trousers pocket; and

(iv) She had been a heroin addict for a decade and her daily consumption was about 1 gramme.

7.  Government Chemist examined Drug A and Drug B, and found that Drug A contained 27.80 grammes of a mixture containing 22.70 grammes of heroin hydrochloride whilst Drug B contained 0.14 grammes of a mixture containing 0.12 grammes of heroin hydrochloride.

8.  At the time of arrest, the defendant had HK$450 cash with her.

9.  As of 27 March 2018, the respective street values of Drug A and Drug B were HK$20,970.30 and HK$726.20.

Previous record and antecedent

10.  The defendant has 18 previous convictions resulted from 14 cases.  Out of the 18 convictions there were 3 convictions of possession of dangerous drugs, 12 convictions of theft, 1 conviction of conspiracy to steal.

11.  The defendant was born in June 1975 and is now 44 years old.  She has received education up to Form 4 level.  Prior to her arrest, she worked as a dish washing worker and part-time construction worker with a monthly salary of around HK$15,000.

Mitigation

12.  Defence counsel Ms Chong referred me to R v Lau Tak Ming [1990] 2 HKLR 370 for the first charge of trafficking in a dangerous drug, and R v Mok Cho Tik [2001] 1 HKC 261 for the second charge of possession of a dangerous drug.

13.  For the first charge, Ms Chong also referred me to the judgments of HKSAR v Wan Wai Lun [2018] 1 HKLRD 1022, HKSAR v Chiu Wai Wai DCCC 1112/2010, HKSAR v Hau Wai Keung DCCC 89/2018 and asked this Court to adopt a starting point of 72 months.

14.  For the second charge, Ms Chong asked this Court to adopt a starting point of no more than 18 months.

15.  On totality, Ms Chong referred this Court to HKSAR v Chiu Hoi Yan CACC 295/2014 and asked this Court to order the sentences for the two charges to run concurrently.

16.  Ms Chong submitted in her written Mitigation that 20% of Drug A was for the defendant’s own consumption.  At the hearing today, Ms Chong told me that no evidence would be called to substantiate how the figure of 20% arrived at.  I indicated to both parties that since there was positive result in the urine test report, I was prepared to accept that some of Drug A was for the defendant’s own consumption but without any evidence to show that a significant proportion of Drug A was for the defendant’s own consumption, I would only give her a discount of less than 10% for that matter. Both Ms Liu and Ms Chong agreed with me adopting such an approach.

Sentence

17.  For the first charge, I will adopt a starting point of 6 years’ imprisonment for trafficking in 22.70 grammes of heroin hydrochloride.

18.  Regarding self-consumption, I bear in mind the Court of Appeal’s decision in HKSAR v Liu Ming Sze [2017] 1 HKLRD 297.  Taking into account that the proportion of heroin hydrochloride intended to be used for the defendant’s own consumption also carries a sentence in any event and the latent risk factor, I am prepared to reduce the sentence by 4½ months to 67½ months’ imprisonment.  I give the defendant a further one-third discount for her timely indication of guilty plea.  There being no further valid mitigating factors justifying further reduction in sentence, the sentence for the first charge is 45 months’ imprisonment.

19.  For the second charge, I will adopt a starting point of 4½ months’ imprisonment.  I give the defendant a one-third discount for her timely indication of guilty plea.  There being no further valid mitigating factors justifying further reduction in sentence, the sentence for the second charge is 3 months’ imprisonment.

20.  On totality, I order the sentences for both charges to run concurrently.  The total sentence is therefore 45 months’ imprisonment.