HKSAR v. YAN HEUNG WA

DCCC 622/2018

[2019] HKDC 482

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 622 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant is convicted upon his own guilty plea of the charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap134.

Facts

2.  At about 1:25 am on 25 April 2018 outside 167 Tung Choi Street, the police intercepted the defendant for enquiry.  Upon search, a plastic bag (“E1”) containing 5 small red packets (“E2”) and 40 small white packets (“E3”) of suspected dangerous drugs were found underneath the waist band of the left front side of the defendant’s pants.  E1 also contained a betting slip with “5A40B” written thereon.  Under caution at the scene, the defendant said that E2 and E3 were “white powder” for his own consumption.

3.  A cautioned video-recorded interview was conducted with the defendant on the evening of 25 April 2018 when the defendant repeated what he had said under caution at the scene.  He also said, inter alia, that:-

(i) He had purchased E2 and E3 from someone at a park near Changsha Street, Mong Kok at the price of HK$8,000;

(ii) The numbers/words “5A40B” on the betting slip meant that there were respectively 5 red packets and 40 white packets of dangerous drugs;

(iii) He was a casual cleaning worker earning about HK$20,000 per month;

(iv) He lived with his mother, son and daughter in Tsz Wan Shan; and

(v) The dangerous drugs he had purchased would last for about 1 to 2 months.

4.  Government Chemist examined the contents of E2 and E3, and found that:-

• E2 contained a total of 1.92 grammes of a mixture containing 1.26 grammes of heroin hydrochloride; and

• E3 contained a total of 7.46 grammes of a mixture containing 4.77 grammes of heroin hydrochloride.

5.  The total street value of E2 and E3 is HK$10,703.

Previous conviction record and antecedent

6.  Prior to the conviction resulted from the present case, the defendant has 16 previous convictions derived from 13 court cases.  Out of the 16 previous convictions, there were 3 previous convictions of trafficking in dangerous drugs.  He has 1 conviction of managing a divan. He also has 4 previous convictions of possession of dangerous drugs.

7.  The defendant was born in Hong Kong in October 1961.  He is now 57 years old.  Prior to his arrest for the present offence, the defendant was a part-time renovation worker earning about HK$20,000 per month.  The prosecution informed me that the defendant had been a drug addict for 35 years.

Mitigation

8.  Mr Boyton reminded the court that one-third discount should be given to the defendant for his guilty plea.

9.  Further, Mr Boyton submitted and the prosecution agreed that one-third of the heroin in the present case was for the defendant’s own consumption.  He asked this court to give the defendant 10% discount in that regard.  The prosecution asked this court to give a less than 10% discount.

Sentence

10.  The sentencing guidelines for trafficking in heroin are set out in R v Lau Tak Ming[1]. Where the narcotic quantity is up to 10 grammes, the sentence upon conviction after trial is between 2 and 5 years’ imprisonment.

11.  In the present case, 6.03 grammes of heroin hydrochloride were involved.  I adopt a starting point of 3½ years’ imprisonment.

12.  Regarding the defendant’s allegation of self-consumption, I have considered the Court of Appeal’s decision in HKSAR v Liu Ming Sze[2] in which it was held that the range of discounts suggested in Chow Chun Sang[3] was not relevant unless the dangerous drugs for self-consumption were to be regarded as a “significant proportion” of the dangerous drugs in which the offender unlawfully trafficked.  In the present case, the defendant claimed and the prosecution agreed that one-third of the heroin was for the defendant’s own consumption.  I am satisfied that it was a significant proportion which entitled the defendant some discount on sentence.

13.  Having taken into account that:-

(i) E2 and E3 were carried in the early hours of the morning on the street in Mong Kok which was not close to the defendant’s residence in Tsz Wan Shan;

(ii) E2 and E3 were packaged in a total of 45 packets;

(iii) possession of E2 and E3 carries a sentence in any event; and

(iv) the latent risk factor.

I am minded to reduce the starting point to 37½ months’ imprisonment by virtue of the defendant’s claim of self-consumption. The reduction of 4½ months represents a 10.71% discount from the starting point of 3½ years’ imprisonment.

14.  I further give one-third discount to the defendant for his timely guilty plea. The sentence is therefore reduced to 25 months’ imprisonment. There being no other valid mitigating factors justifying further reduction in sentence, the defendant is sentenced to 25 months’ imprisonment.