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DCCC 637/2013
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 637 OF 2013
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| Before: |
HH Judge Woodcock |
| Date: |
2 October 2013 at 10.36 am |
| Present: |
Mr Ian Hastings Polson, Counsel on fiat, for HKSAR |
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Mr P T Charles Chiu, instructed by Tsangs, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
(1) Conspiracy to traffic in a dangerous drug |
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(串謀販運危險藥物) |
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(2) Trafficking in a dangerous drug (販運危險藥物) |
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Reasons for Sentence
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1. You have pleaded guilty to two charges today:
(1) Charge 1 is a conspiracy to traffic in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134 and sections 159A and C of the Crimes Ordinance, Cap.200;
(2) Charge 2 is trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the same ordinance.
2. You agreed the summary of facts as read to you and you were convicted of both charges on your own plea.
3. The facts were as follows.
4. On 18 April 2013, PC 58648 saw you acting suspiciously in the Mong Kok area and stopped you. When he revealed his identity to you, you put something in your mouth. This officer told you to spit it out and you spat out five packets of suspected heroin. These five packets were later determined to contain 1.44 grammes of a mixture containing 1.12 grammes of heroin hydrochloride. This is Exhibit E1. You also had HK$9,900 on your person.
5. You made a full admission to the police at the scene and later in a video recorded interview.
6. You admitted you had sold, before your arrest, 45 packets out of 50 given to you by a man you called “Ah Fat”. You had sold each packet or pellet for HK$220. Hence, $9,900 was the proceeds of the sale of those 45 packets. You had five left on your person when you were arrested. You told the police that you would receive $800 as a reward for selling the drugs on behalf of this Ah Fat.
7. From your admission to the police and the information you gave the police, I calculate the pellets being more or less of an equal size if all were sold for the same price. I calculated that the 50 packets that you were given would contain approximately 14.4 grammes of a mixture containing 11.2 grammes of heroin hydrochloride.
8. Of course, I do not have a government chemist’s certificate to tell me how much heroin was in 45 packets already sold. However, it must be right that the quantity was more or less or approximately 11 grammes of pure heroin. I can use that figure to assist me in sentencing.
9. For Charge 2, you committed this offence whilst on police bail for Charge 1. You were arrested 10 days later in a park in Mong Kok and for trafficking in dangerous drugs. You were observed selling dangerous drugs to others on three occasions. After the third male left hurriedly, the police intercepted you. When you were intercepted, you immediately swallowed something.
10. Upon your arrest and under caution, you asked the police for a chance and admitted you had just swallowed five packets of heroin. The police also found cash of $3,448 on you. In addition, there was a cigarette packet in your pocket that contained a tablet of midazolam and one paper packet containing 0.26 grammes of a mixture containing 0.14 grammes of heroin hydrochloride.
11. You later excreted seven further pellets. Those contained a total of 1.61 grammes of a mixture containing 1.29 grammes of heroin hydrochloride.
12. The fact that you were on bail when arrested again is an aggravating factor I can take into account.
13. You are not a man of clear record. You have many previous convictions: three relate to possession of dangerous drugs and you have one similar conviction for trafficking in dangerous drugs in 2009; you were sentenced to 20 months’ imprisonment.
14. In mitigation, I have heard that you are 41 years old, live with your girlfriend and her 11-year-old son. You work part-time. You admit to the police that you have a drug addiction, which would explain why you would commit these offences.
15. Your plea of guilty today is your best mitigation.
16. Counsel has said all he can on your behalf in mitigation. He has stressed you are not the mastermind but a cog in the wheel, a trafficker selling on behalf of another who pays you to sell drugs and take the risk of arrest.
17. However, you are not just a drug mule. You are actually selling dangerous drugs in the streets of Mong Kok, even selling whilst on bail.
18. In deciding a starting point for Charge 1, I will take into account my calculation of how much heroin 50 packets may have approximately contained. I stress the amount is not particularised in the charge, but the defendant has, on his own admission and whilst cooperating with the police, assisted the court to gauge the scale and seriousness of this conspiracy.
19. I accept the conspiracy is confined to one day only and I do take into account that the defendant did cooperate with the police after the first arrest.
20. I also take into account, according to section 39 of the Dangerous Drugs Ordinance, conspiracy to traffic in a dangerous drug should be liable to the penalty for trafficking in a dangerous drug.
21. According to the authority of R v Lau Tak Ming & Ors [1992] HKLR 370, for about 11 grammes of heroin, a defendant would be looking at a starting point of just over 5 years.
22. Having considered all of the above factors, I will take for Charge 1 a starting point of 5 years.
23. For Charge 2, I take into account the circumstances of your arrest and the observation of the police officers. The quantity of heroin is relevant and that same authority says that where up to 10 grammes of heroin is trafficked a starting point of between 2 to 5 years is appropriate.
24. If you had not been on police bail at the time, I would have considered a starting point of 2 years and 6 months appropriate, but because of that aggravating factor, I will take a starting point of 3 years.
25. Defendant, please stand up.
26. You have pleaded guilty to both charges and are entitled to a discount of one-third.
27. Therefore,
(1) for Charge 1, the 5-year starting point will be reduced to 3 years and 4 months;
(2) for Charge 2, the 3-year starting point will be reduced to 2 years.
28. I consider the totality principle, the facts of the case and the 10-day gap between the two offences.
29. I order 6 months of Charge 2 to be served consecutively to Charge 1, the balance concurrent.
30. Therefore, the total sentence is 3 years and 10 months’ imprisonment.
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A. J. Woodcock |
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District Judge |
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