HKSAR v. YU HAAP YAM

DCCC 192/2020

[2020] HKDC 863

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 192 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of trafficking in a dangerous drug. Particulars of the charge are that he on 2 January 2020 unlawfully trafficked in 8.88 grammes of heroin hydrochloride at the junction of Nam Cheong Street and Tai Po Road in Sham Shui Po.

Summary of facts

2.  The defendant was intercepted at around 6pm by police officers who found the defendant acting suspiciously.  Upon searching, a cigarette box was found inside the left pocket of the defendant’s trousers.  Inside the cigarette box, three transparent resealable plastic bags with a total of 50 packets of suspected dangerous drugs.

3.  Subsequent analysis of the substances by Government Chemist confirmed that the 50 packets contained a total of 11.69 grammes of a mixture containing 8.88 grammes of heroin hydrochloride.

4.  Under caution in a subsequent video recorded interview, the defendant stated that a male named Ah Fai asked him to deliver a cigarette box to a person named Ah Keung for $500.  The defendant agreed to deliver.  He opened the cigarette box and knew there were around 40-50 packets of heroin inside. The cash of $7,907 found on him was his earnings from work.

Previous convictions

5.  The defendant has 17 previous convictions of which 5 of them were possession of dangerous drug and 11 of them were theft offences.  The last conviction was trafficking in dangerous drug case in which he was sentenced to 40 months’ imprisonment in 2017.

Mitigation

6.  The defendant is 50 and married.  The defendant came to Hong Kong from China in 2000.  Since then, he is living apart with his wife and his two children aged 20 and 18.

7.  The defendant has been receiving CSSA of $2,500 since January 2019.  Besides, he worked as a part-time delivery worker, earning $500 per day working on an average of 8 to 10 days per month.

Sentence

8.  In relation to the trafficking of heroin hydrochloride, the guideline sentencing tariff is as set out in the case of R v Lau Tak Ming CACC 230/1989.  For narcotic contents of below 10 grammes, the range of sentence is between 2 to 5 years’ imprisonment.

9.  An arithmetical approach would lead to a starting point of 55.5 months’ imprisonment, and this is the starting point that I adopt.

10.  According to the case of HKSAR v Chan Pui Chi [1999] 2 HKLR 830, the sentencing court has a duty to consider increasing the sentence of a repeated offender in order to deter the defendant from committing the offence again in the future and to protect the public.

11.  The defendant is a repeated offender.  He has 17 previous convictions. His last conviction was in 2017 for trafficking of dangerous drugs.  He was discharged from prison on 26 December 2018.  In just more than a year’s time, he committed the present offence.  I find the defendant’s record an aggravating factor and I will enhance the starting point for 3 months to 58.5 months.

12.  The defendant had entered timely guilty plea to the charge.  He is entitled to the full one-third discount.  The defendant is, therefore, sentenced to 39 months’ imprisonment.