HKSAR v. KWOK FUK CHUEN

DCCC 134/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 134 OF 2012

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Reasons for Sentence

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1.  The defendant has been convicted on his own plea of one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, namely 33.76 grammes of a mixture containing 23.74 grammes of heroin hydrochloride.

2.  The particulars of the offence are that at around 0608 hours on 6^th November, 2011, patrolling police officers saw the defendant walking along Kansu Street towards Battery Street.  Upon seeing the police officers, the defendant stopped, looked to his left and to his right, and then walked quickly towards Battery Street.  The police officers followed the defendant, and he started to run.  The police officers gave chase and intercepted the defendant at the junction of Reclamation Street and Kansu Street. Upon search, some of the dangerous drugs the subject matter of the charge, totally 120 packets, were found from the defendant. He was arrested and cautioned, and claimed under caution that he had the dangerous drugs for his own consumption.  He was taken back to the Yau Ma Tei Police Station where a detailed search of the defendant was performed and a further 40 packets of dangerous drugs were found from the defendant’s underpants.  He was further arrested and cautioned and maintained that the drugs were for his own consumption.  In a subsequent video recorded interview under caution, he admitted that he knew the dangerous drugs in question were heroin, that he had purchased these from an unknown person in Mong Kok for HK$5,600, half for his own consumption and half for a friend, who had given him the money to buy the drugs, and he was to meet his friend later to give the drugs to him. He received comprehensive social security assistance of HK$3,000 each month and consumed 2.5 packets of heroin per day. The Government Chemist Certificate confirmed that the 160 packets contained 33.76 grammes of a mixture containing 23.74 grammes of heroin hydrochloride. The estimated street value was HK$27,109.

3.  The defendant has 17 previous court appearances with 22 convictions, the last being in 2009.  His criminal record dates back to 1975. This is his fourth conviction for trafficking in dangerous drugs. He has five previous convictions for possession of a dangerous drugs.  According to Part B of the Criminal Record Summary, relating to convictions where it was ordered that no conviction be recorded, he has been convicted of four drugs related offences, and has been sentenced to the DATC on four occasions, in 1976, 1985, 1986 and 1987.  Although in the antecedent statement it is recorded that his family members are all in Hong Kong, Defence Counsel has submitted that in fact the defendant has been married for 7 years, and his wife, who is aged about 50 years, is a Mainlander and lives in Shenzhen and works as a domestic helper.  They have no children.  The defendant has no other family members. Save for that, no issue is taken in respect of the contents of the antecedent statement.

4.  In mitigation, I am told that the defendant is aged 52.  He is a drug addict. His record discloses that he has been to the DATC on four occasions, the most recent being in 1987.

5.  He was educated up to Primary 3 in Hong Kong, and was unemployed at the time of his arrest.  He worked as a delivery worker earning $250 a day until about 6 months prior to his arrest.

6.  The defendant now admits that he was in possession of the drugs in question for trafficking, although in mitigation Counsel for the defendant submitted that a part would be for his own consumption, although even the defendant himself is unable to say how much.  Counsel for the prosecution accepts that perhaps some of the dangerous drugs could be for the defendant’s own use.  But as Counsel for the prosecution rightly said, it would not be possible to differentiate what would be for self use.

7.  As Defence Counsel has rightly said, the appropriate sentence for trafficking in 10 to 50 grammes of heroin hydrochloride is from 5 to 8 years’ imprisonment, pursuant to Lau Tak Ming [1990] HKLR 370.

8.  The sentence follows the quantity of drugs.  That would put the quantity in the defendant’s possession for trafficking at the material time to be 23.74 grammes of heroin hydrochloride, and would warrant a starting point of 6 years’ imprisonment.

9.  In HKSAR v. Chow Chun Sang, CACC 135/2011, Hon Yeung VP, in delivering the judgment of the Court, said :-

“19. We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on the circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of the discount in a particular case, the court should have regard to factors including the total quantities of drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant.”

10.  I have taken into account that the defendant is a drug abuser and that some of those drugs would have been for his own consumption.  There was no direct evidence of sale of any drugs.  I have also borne in mind the latent risk of the drugs for self-consumption falling into the wrong hands.  There is a total of 160 packets – in my view that is quite substantial.  The defendant was unemployed at the material time, and it was because of financial circumstances that he was trafficking the dangerous drugs in question for financial gain.  He has a long criminal history, including for drugs related and trafficking offences.

11.  Looking at those features of the case, I have decided that the appropriate starting point for this offence is one of 5½ years’ imprisonment, i.e. 66 months.

12.  The defendant has pleaded guilty and he is entitled to a discount of one-third to reflect that.  That is the only mitigation of weight before me.

13.  He is therefore sentenced to 3 years’ and 8 months imprisonment, ie 44 months.