HKSAR v. CHEUNG FOOK SAU

DCCC885/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 885 OF 2010

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Reasons for Sentence

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1.  The defendant pleaded guilty to 3 charges of "Trafficking in a dangerous drug". The dangerous drug involved in all 3 charges is heroin.

Summary of Facts

Charge 1

2.  About 9:30 pm on 20 May 2010, police officers stopped the defendant on Hennessy Road in Wanchai.  Upon search, 2 resealable plastic bags (P1 and P2) were found tucked inside his right sock.  P1 contained 70 pellets which contained a total of 11.82 grammes of a mixture containing 4.57 grammes of heroin hydrochloride; and P2 contained 74 pellets which contained a total of 12.50 grammes of a mixture containing 4.65 grammes of heroin hydrochloride. 

3.  Under caution, the defendant admitted that he was delivering P1 and P2 for someone to earn some money.

Charge 2

4.  From 10:40 to 11:35 pm in the same evening, the Police conducted a house search at the defendant's home in Mongkok.  The Police found, inter alia, the following items in the living room :-

(i) 1 transparent resealable plastic bag which contained 7.59 grammes of a mixture containing 6.04 grammes of heroin hydrochloride;

(ii) 140 pellets which contained a total of 23.75 grammes of a mixture containing 8.87 grammes of heroin hydrochloride;

(iii) 1 transparent resealable plastic bag containing 9 other resealable plastic bags;

(iv) 1 yellow plastic card containing traces of heroin;

(v) 1 piece of black paper containing traces of heroin; and

(vi) 1 pair of pink scissors

5.  Under caution, the defendant admitted that the items found in the living room of his home were for him to earn some money to support his family.  He also carried 2 keys to his home with him.

Charge 3

6.  The defendant was later remanded in custody and was placed in a single cell at the Lai Chi Kok Reception Centre.  On 24 and 25 May 2010, the defendant excreted on 3 occasions a total of 15 pellets which contained a total of 2.44 grammes of a mixture containing 0.86 grammes of heroin hydrochloride.

7.  Under caution, the defendant admitted that the 15 pellets were heroin.  When he was stopped by the Police in the evening of his arrest, he had 10 odd pellets of heroin in his mouth.  At that time, he panicked and swallowed them all.  He now admits that he possessed the 15 pellets of heroin for the purpose of unlawful trafficking.

Mitigation & Sentence

8.  The defendant is now 36 and has 28 conviction records, 14 of which are drug-related (including "trafficking").  He resides with his girlfriend in Hong Kong; they have 2 daughters (aged 3 and 1).  Prior to his arrest, the defendant was a casual delivery worker earning about $3,000 per month.  Mr. LAM submitted that the defendant's previous drug-related convictions are mostly "simple possession"; he only has 4 "trafficking" records.

9. A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment. The sentencing tariff for trafficking in heroin is laid down in The Queen v LAU Tak-ming & others [1990] 2 HKLR 370. For 10 to 50 grammes, the sentence ranges from 5 to 8 years. In my view, the defendant clearly falls within the "repeated offender" category. A higher than normal starting point is required to add a deterrent element in his sentence.

10.  A total of 24.99 grammes of heroin are involved in the present case.  The usual starting point for such quantity should be 6 years; however, in order to achieve a deterring effect, the overall starting point should be raised to 6.5 years.

11. For Charges 1 and 2, I adopt a starting point of 5 years imprisonment. One-third discount is given for the guilty pleas, reducing each sentence to 40 months. For Charge 3, I adopt a starting point of 2 years imprisonment. One-third discount is given for the guilty plea, reducing the sentence to 16 months. Apart from his guilty pleas, I see no other mitigating factors which warrant any further discount for any of the 3 charges. Hence, the sentences for Charges 1 to 3 are respectively 40 months, 40 months and 16 months imprisonment.

12.  After considering the total quantity of heroin involved and the totality principle, I order 6 months in Charge 2 to run consecutive to Charge 1; and 6 months in Charge 3 to run consecutive to Charges 1 and 2, arriving at a total prison term of 52 months (4 years and 4 months) for all 3 charges.