|
DCCC 1000/2020
[2021] HKDC 709
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1000 OF 2020
________________________
________________________
| Present: |
Ms Ivy Y.Y. Lau, counsel on fiat, for HKSAR |
|
Ms Annie Lai instructed by Kevin Ng & Co,
assigned by the Director of Legal Aid, for the defendant |
| Offence: |
Trafficking in dangerous drugs (販運危險藥物) |
________________________
REASONS FOR SENTENCE
________________________
1. The defendant pleaded guilty on 1 June 2021 to one charge of trafficking in heroin hydrochloride and monoacetylmorphine hydrochloride outside the Yuen Long Jockey Club Health Centre, contrary to section 4 of the Dangerous Drugs Ordinance[1].
2. Sentence was adjourned for the prosecution to obtain further information from the Government Chemist about monoacetylmorphine hydrochloride and to confirm whether the Yuen Long Jockey Club Health Centre was also a methadone clinic and for Ms Lai to consider the judgments of the Court of Appeal on monoacetylmorphine hydrochloride and trafficking outside methadone clinics[2].
3. Full particulars of the offence are set out in the amended summary of facts admitted by the defendant on 1 June 2021. In summary at about 18:03 hours on 19 August 2020 the police intercepted the defendant who was sitting on a bench outside the Yuen Long Jockey Club Health Centre holding a black shoulder bag.
4. Suspecting the defendant was in possession of dangerous drugs PC 24220 searched the black shoulder bag. PC 24220 found a red cylinder potato chips can inside which was six re-sealable plastic bags containing a total of fifty-two transparent straws.
5. After examination by the Government Chemist the straws were found to contain a total of 8.11 grammes of a mixture containing 4.72 grammes of heroin hydrochloride and 0.91 gramme of monoacetylmorphine hydrochloride.
6. The police also found on the defendant $4,250 and a mobile phone.
7. Under caution and in a video recorded interview the defendant stated, inter alia, that he did not have work and therefore sold dangerous drugs for a man called Ah Wing to earn money for household expenses; Ah Wing gave him the potato chips can and told him to sell the heroin; one straw cost $280 from which the defendant could earn $10; between 2 p.m. and 5 p.m. the defendant sold twenty-eight straws; he passed the earnings to Ah Wing; he earnt $280 from the sale of the heroin and that the money and mobile phone found on arrest belonged to him.
8. The market price of the dangerous drugs found in the black shoulder bag was $1,914 per gramme.
Mitigation
9. In passing sentence, I have carefully considered the oral and written submissions of Ms Lai including that the defendant, who is 63 and married with one daughter who is studying Form 2, is the sole breadwinner of the family[3].
10. Ms Lai explains because of the pandemic the defendant became unemployed and was tempted into selling dangerous drugs[4].
Guidelines
11. In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[5]. The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment.
12. Ms Lai originally submitted that the amount of monoacetylmorphine hydrochloride was very minimal and asked the court to ignore this.
13. In support Ms Lai referred the court to three cases, two concerning very small quantities of midazolam, 0.14 g and 0.08 g and one case concerning 0.65 gramme of herbal cannabis and 4 milligrammes of flunitrazepam[6].
14. I am satisfied that 0.91 gramme, nearly 1 gramme of monoacetylmorphine hydrochloride, is not to be equated with small quantities of midazolam, herbal cannabis or flunitrazepam and is instead to be added to the heroin hydrochloride.
15. The courts have treated monoacetylmorphine hydrochloride and heroin hydrochloride the same way for sentencing purposes[7]. The cases reveal there are two types of monoacetylmorphine hydrochloride which are abbreviated to 3-MAM and 6-MAM. 3-MAM has a much lower potency whereas 6-MAM has the same potency as heroin hydrochloride. The Government Chemist confirms that the monoacetylmorphine was 6-MAM[8].
16. Ms Lai, having been referred by the court to the judgments of the Court of Appeal on monoacetylmorphine hydrochloride, agrees that the monoacetylmorphine hydrochloride and heroin hydrochloride can be added together[9].
17. On a purely arithmetical approach a starting point of just over 3 years and 8 months’ imprisonment is appropriate for trafficking in a total of 5.63 grammes of heroin hydrochloride and monoacetylmorphine hydrochloride. The arithmetical approach however is only appropriate for the courier or storekeeper recognised to be the lowest rank in the trafficking hierarchy. Actual or direct trafficking of dangerous drugs to others on the street is more serious[10].
Previous history of narcotic offences
18. The defendant has six previous convictions, all for possession of dangerous drugs. In R v Lau Tak Ming the Court of Appeal said that within the suggested bands a sentencing judge may properly take into account previous history of narcotic offences[11]. Taking into account the defendant has no previous convictions for trafficking in dangerous drugs and that his last conviction for possession of dangerous drugs was in 2005 since which time the defendant has remained out of trouble, I do not enhance the starting point by reason of previous offending.
Methadone clinic
19. Ms Lau confirms that the Yuen Long Jockey Club Health Centre and the Yuen Long Methadone Clinic are part of the same complex for which there are two entrances[12]. Ms Lau has submitted two maps showing the health centre and the methadone clinic and has marked on one of the maps the two entrances and the position of the defendant when he was stopped and searched.
20. Ms Lai having taken instructions from the defendant marks in blue on a copy of the same map the waiting area, an automatic door, a pillar and MC (methadone centre ) door[13].
21. The waiting area is outside the health centre and is shown in photographs 10-12[14]. Ms Lai says the defendant was stopped and searched when he was sitting on a blue chair in the waiting area and not position X marked by Ms Lau. Ms Lau accepts that the defendant was sitting on a blue chair in the waiting area when he was seen by the police[15].
22. Ms Lai further submits that the methadone clinic was on the opposite side of the health centre where the defendant was arrested. This is also accepted by Ms Lau.
23. In HKSAR v Ng Kwok Fai the court said that trafficking drugs outside a methadone clinic is a very grave aggravation of the offence of trafficking in a dangerous drug and that it is essential that drug dealers, be they small type or not, be sentenced to proper terms of imprisonment to discourage them, particularly, where they commit such offences outside a methadone clinic[16].
24. Ms Lai points out that the defendant was not seen openly offering dangerous drugs for sale outside the methadone clinic. The fact however remains that the defendant was trafficking dangerous drugs in the vicinity of a methadone clinic.
25. Taking into account the quantity of dangerous drugs which were contained in fifty-two transparent straws and that the defendant was trafficking dangerous drugs in the vicinity of a methadone centre, I am satisfied a starting point of 4 years’ imprisonment is appropriate.
26. Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years and 8 months’ imprisonment.
| |
(D. J. DUFTON) |
| |
District Judge |
[1] Cap 134.
[2] The court referred the parties to decisions from the Court of Appeal where monoacetylmorphine hydrochloride and heroin hydrochloride were treated the same way for sentencing purposes and where trafficking outside a methadone centre was regarded as an aggravating factor.
[3] See §§1 & 2 of the defendant’s written mitigation submissions.
[4] See §§2 & 3 of the defendant’s written mitigation submissions.
[5] [1990] 2 HKLR 370.
[6] See §§5 & 8-10 of the defendant’s written mitigation submissions (there is no §§6 & 7).
[7] See for example HKSAR v Kanfune Bashiri Rajabu CACC 493/2012; HKSAR v Le Grange Marc Lee CACC 406/2012; HKSAR v Akinyi Grace Sylvia CACC 324/2015; HKSAR v Masham Deborah James CACC 381/2015 and HKSAR v Samuel Chukwu CACC 290/2016. Also see HKSAR v Ihemegbulam Nombulelo Virginia HCCC 108/2010 where the court referred to heroin which was hydolyzed.
[8] See letter dated 8 June 2021 from Ms Lau enclosing statement of the Governnment Chemist dated 4 June 2021.
[9] See the conclusion in the further written submission dated 9 June 2021.
[10] See HKSAR v Herry Jane Yusuph CACC 93/2019 at §§58-64.
[11] [1990] 2 HKLR 370 at 386E.
[12] See letter dated 8 June 2021 from Ms Lau. I also note that The Department of Health lists the Yuen Long Jockey Club Health Clinic as a methadone clinic.
[13] MFI-5.
[14] MFI-6. The photographs were submitted when Ms Lai was addressing the court about the location where the defendant was arrested.
[15] The amended summary of facts refer to the defendant sitting on a bench. Ms Lau confirmed the defendant was seen sitting on a chair and not on a bench.
[16] HCMA 726/2010 at §32. Also see HKSAR v Lau Kwok Chun & Law Po Keung CACC 303/2001 at §30.
|