HKSAR v. FAN WING KIT

DCCC 621/2019

[2019] HKDC 1507

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 621 OF 2019

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REASONS FOR SENTENCE

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1.  On the night of 10 May 2019, police officers stopped the defendant leading to the discovery of drugs when he was coming out of his flat, a public housing unit on the 21^st floor of Kai Sin House, Upper Wong Tai Sin Estate.

2.  The drugs in question are 8.39g of a powder containing 6.16g of heroin hydrochloride, which were in the form of 35 pellets inside a plastic bag wrapped in newspaper and held by the defendant.

3.  He was thus arrested for the offence of drug trafficking, under caution, he said, “I was only being paid $500 to bring these drugs to Wong Tai Sin MTR station for others. Ah sir, give me a chance.”

4.  The street value of the drugs is estimated to be about $6,000.   

5.  The defendant pleaded guilty before me to one count of drug trafficking - the amount of drugs is same as the ones stated in paragraph 2 above.

6.  The defendant, 37, has amassed 6 previous convictions in the past five of them are drug-related but none trafficking. His first conviction is possession of drugs back in 2002 for which he was put on probation and his last conviction is also possession of drugs in 2015 but this time he was sent to prison for 8 months.

7.  In mitigation, the court heard that the defendant lives with his parents and 3 adult siblings. He only received education up to junior high school. He came to Hong Kong from the Mainland at the age of 18 to reunite with his family and has since been helping at his mom-and-pop fruit store with a recent monthly salary of $12,000.

8.  Regarding part-consumption, counsel for the defendant, Miss Wu, submitted that the defendant is a long-time heroin abuser, and for the drugs seized in this case, 10 out of 35 pellets were actually for the defendant personal use.

9.  In his letter to the court, the defendant reiterated that some of the drugs were for his own consumption.

10.  Relying on the case of Choi Chun Wo[2019] 5 HKLRD 717 in which the Court of Appeal opined that 28.5% could qualify as significant proportion and warrant a further reduction in sentence by 12%, Miss Wu asked this court to give a further discount on the ground of part-consumption.

11.  If the court was not with her on this point, Miss Wu went on to say that given the fact that the defendant is a long-time drug abuser, based on the case of Kong Tat Lung [2018] 5 HKLRD 623,  the court could still exercise its discretion to give the defendant a few months off.

12.  I have made it clear to the defence that on the evidence before the court, I am not prepared to give a discount more than one-third but would be happy to hear further evidence to determine the matter. Miss Wu, however, told the court that there would not be further evidence.

13.  The reason why I refused to accept the defence contention is that based the facts of the instant case, what the defendant did and what he told the police did not in any way indicate that he had some of the drugs for his own consumption.

14.  There is a common theme underlying the two authorities cited by Miss Wu above - some of the drugs would be used by the drug dealer himself; if the proportion is regarded as significant, a further reduction by 10% to 25% may be considered; if not, the court retains a discretion to knock a few months off if the defendant is proved to be a drug abuser. In either situation, however, the court must conclude that some of the drugs are for the defendant’s own consumption.

15.  The reason is very simple – the fact that the defendant is a drug abuser can never amount to a mitigating factor – it must be because of his drug habit he may have some of the drugs for himself.

16.  Upon his arrest, the defendant told the officers that he was bringing  “these drugs “ to Wong Tai Sin station for others and he did that for a reward of $500, that must mean the whole of the drugs that were found at the time, that is 35 pellets of heroin.

17.  In fact, in the subsequent police interview, the defendant divulged further details on how he got the job and how he was going to accomplish the task - a stranger offered him the job earlier in the morning in the park downstairs; he opened the newspaper and found the pellets inside, he could recognize it as heroin; then he took it home and placed it in the fire hose outside his room; what he needed to do next was to take the drugs wrapped in newspaper to the MTR station and drop it in a rubbish bin there, but before reaching the bin, he was caught by the police. And he was not paid yet.

18.  When he came out of his flat, obviously he was delivering the drugs to the designated spot, i.e. the rubbish bin in the station and the drugs, the whole of it, were meant for others. It would make no sense at all under such circumstances if the defendant would mix the portion meant for others with that which for personal use. To put it in another way, none of the drugs were for his own use.

19.  Given the case as it is, I do not think it right to give a further discount on top of a third resulting from the guilty plea simply on the grounds that the defendant was a drug addict.       

20.  There are sentencing guidelines for this type of offence – for trafficking up to 10g, 2 to 5 years,

21.  Given the amount the defendant admitted trafficking (6.16g), I take 46 months as the starting point. His plea is timely, so he is entitled to a full one-third discount.

22.  Giving the appropriate discount, the starting point is reduced to 30 months. Insofar as mitigation is concerned, there is not anything of substance.  

23.  There being no reasons for further reduction, the final sentence is one of 30 months’ imprisonment.