CRIMINAL CASE NO. 227 OF 2010
COURT: Defendant, please stand. The defendant has pleaded guilty to one count of trafficking in a dangerous drug, namely 55.87 grammes of a mixture containing 44.93 grammes of heroin hydrochloride. He has also pleaded guilty to one count of possession of a dangerous drug, namely 0.15 grammes of methamphetamine hydrochloride, 20 tablets containing 0.27 grammes of midazolam and 205 millilitres of a liquid containing traces of methamphetamine.
The facts are all too common. The defendant was seen by police officers in Fa Yuen Street Mongkok acting in a furtive manner and, upon a search, the drugs, the subject matter of Count 1, was found in his jeans pocket. And on the 2nd count, when the defendant was taken to his reported address for a house search, the drugs in the 2nd count were found. Also found was a tenancy agreement in the name of the defendant.
In relation to the drugs in the 1st count, under caution the defendant admitted that he had the heroin for his own consumption. He remained silent when cautioned for the drugs in the 2nd count.
According to the Government Chemist’s certificate, the drugs that were found in the 1st count amounted to a total of 44.93 grammes of heroin hydrochloride. And in Count 2 the drugs were found as stated in the particulars of the 2nd count.
The value of the drugs in the 1st count amounted to about $50,953 which is a street value. In relation to the drugs in the 2nd count, the methamphetamine would fetch about $108 and the midazolam would be about $1,040.
The defendant is aged 42 and has two previous convictions one of which was for possession of dangerous drugs and that was in 1996 when he was sent to a drug addiction treatment centre. His two other offences - in fact four other charges - was not similar and the last of his offences was in 1998.
According to Mr Chang, who mitigated on his behalf, the defendant was a drug addict for about 10 years when he was incarcerated at the Whitehead Detention Centre. The defendant was a Vietnamese refugee who arrived in Hong Kong and had stayed in the camp and finally gained his Hong Kong citizenship in 1994.
Mr Chang says that after he was released from the drug addiction treatment centre in 1999 he was no longer addicted to drugs. He had married, or rather he had lived together with a lady he had met in the camp and he has now a 10 year-old son, but five years ago he separated from his common law wife and the son is living with his common law wife.
The defendant lives alone and up to the time of his arrest, had been a construction worker. And because he was unable to find work in January, Mr Chang says that out of financial despair, he then fell back to dangerous drugs and he got addicted to “ice”. And in order to supplement his income he agreed to carry the drugs for reward of $1,000.
Mr Chang says that the drugs found in the defendant’s home which is the subject matter of Count 2, was to help the defendant sleep. The only mitigation in this case is that the defendant is remorseful and it is shown by his plea of guilty.
Mr Chang has correctly pointed out that the guideline for sentencing of heroin is laid down in the case of Lau Tak Ming in 1990, where the Court of Appeal said that for trafficking in heroin of between 10 to 50 grammes, it will merit a sentence of 5 to 8 years.
In this case the amount if 44.93 grammes which works out to be 7½ years starting point. Of course, it is only a guideline and each sentencing court has to look at the background of the offence, the background of the defendant and then come to a reasonable starting point.
In this case the defendant’s last conviction was in 1998 for other offences, not for dangerous drugs. His dangerous drugs offence for possession of dangerous drugs was in 1996. So this would really be the first very serious case that the defendant has committed.
So having regard to that I will not increase the starting point of 7½ years. And he is remorseful because of his plea so he is entitled to one-third discount. So in relation to the 1st count, the starting point is 7½ years reduced by one-third because of his plea to 60 months, which is 5 years. So the defendant is sentenced to 5 years' imprisonment on the 1st count.
In relation to the 2nd count, I do take into account the fact that the most expensive drug is the midazolam tablets which carries a street value of about $1,000 and so I consider that an appropriate starting point would be 12 months’ imprisonment reduced to 8 months because of the defendant's plea.
I would order that this 8 month sentence be concurrent to the sentence in the 1st charge and, therefore, the defendant will go to prison for a total of 5 years.