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DCCC 1109/2016
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 1109 OF 2016
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| Before: |
HH Judge Casewell |
| Date: |
17 February 2017 at 12.09 pm |
| Present: |
Mr Jonathan Lin, SPP of the Department of Justice, for HKSAR
Ms Cheng Sin Yu, Eleanor, of M C A Lai Solicitors LLP, assigned by the Director of Legal Aid, for the defendant
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| Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
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Reasons for Sentence
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1. The defendant has pleaded guilty to two offences of trafficking in a dangerous drug. The narcotic quantity of the heroin hydrochloride on the 1st charge is 12.03 grammes and on the 2nd charge 5.65 grammes which gives a total quantity of narcotic of 17.68 grammes.
2. The facts have been agreed and they show that the first offence was brought to light on 2 August 2016. Police officers found a rucksack containing 56 pellets of heroin in a sitting out area in Luen Wan Street. The 56 pellets of heroin contained a total of 12.03 grammes of heroin hydrochloride. There was a certificate of CSA Recipient Medical Waiver in the name of the defendant and also his Bank of East Asia passport also in the rucksack.
3. On 5 August 2016, the defendant was intercepted and under caution he admitted that the rucksack with the drugs belonged to him, it contained heroin which also belonged to him and he intended to sell the drugs for a $1,000. The defendant was released on Police bail but was intercepted again on 16 August 2016 where a pellet of heroin was found in his bag. Now three days whilst in detention on 19 August 2016, the defendant excreted a further 25 pellets of heroin which all contained a total of 5.65 grammes of heroin. The defendant said he swallowed those drugs before he was arrested on 16 August 2016. He said the drugs were for his self-consumption.
4. The street value of all these drugs was $19,215.50 and the defendant has admitted he possessed all the drugs in question for the purpose of unlawful trafficking.
5. The antecedents show that the defendant is aged 39, unemployed at the time of his arrest, said to be a heroin addict living in Temple Street. He has numerous previous convictions. He was first sent to a Drug Addiction Treatment Centre in 2003, subsequently committed to a Drug Addiction Treatment Centre again in 2003, 2005, 2006 and 2008. He has three previous convictions for trafficking in drugs. In 2009 he received 16 months’ imprisonment; 2011, 44 months’ imprisonment and 2014, 14 months’ imprisonment.
6. In mitigation, the defendant’s plea of guilty is prayed in aid. He said he has been a drug addict since he was 15 years old. He says he would have consumed a part of the drug. He trafficked the drug in order to support his own consumption and living expenses. He said he would consume some $400 worth of drugs per day which would amount to two capsules per day.
7. Actually the starting point for sentencing in trafficking in dangerous drugs cases is determined by guideline sentences. The relevant case for heroin is Lau Tak Ming. The drugs in the 1st and 2nd charges fall into different bands of the guideline sentence. In the 1st charge the quantity of drugs lies between the guideline of 10 to 50 grammes which is a total of 12.03 grammes which gives a guideline sentence of between 5 to 8 years’ imprisonment. In the 2nd charge, the quantity is 5.65 grammes which lies in the quantity of up to 10 grammes which is a sentence of between 2 to 5 years’ imprisonment.
8. Each of the starting point for sentence will be subject to the increase in the starting point for the aggravating factor of the defendant’s previous convictions for trafficking which show that the deterrence has failed in the past. Of course the 2nd charge was also committed whilst on bail for the 1st charge which is another aggravating factor.
9. The major mitigating factor besides defendant’s plea of guilty is his self-consumption of the drug. This can lead to a deduction from the starting point for sentence where there is a significant portion of the drug that would be consumed by the defendant. A deduction under this head can lie between 10 to 25 per cent of the starting point.
10. The defendant is a long-term drug addict as is shown by his criminal record. It is reasonable to assume that he would consume a significant portion of the drug himself to maintain his own addiction.
11. What I shall do is approach sentence in this way taking into account these factors. I shall look at the overall total first to determine the overall correct total for sentence in this case. The overall total of drug is 17.68 grammes of the narcotic heroin. That would lie in the region of 5 to 8 years’ imprisonment. I consider the appropriate starting point having regard to the overall totality would be one of 5 years and 9 months which is 69 months’ imprisonment. The aggravating factor of the defendant’s previous convictions would add another 9 months’ imprisonment to that starting point raising the starting point to 78 months in prison.
12. The defendant is entitled in this case by my finding to a reduction for his self-consumption of that quantity of drug. This would lead to a reduction, I consider, of 9 months’ imprisonment. Once the deduction of one-third is taken into account the overall sentence should be 46 months’ imprisonment. This must be apportioned between the two charges the defendant faces.
13. In respect of the 1st charge, I will take a starting point of 5 years’ imprisonment, 60 months’ imprisonment, and the aggravating factor of his previous convictions gives a total of 66 months’ imprisonment for that charge. After a deduction of 9 months for the defendant’s self-consumption, that leads to a figure of 57 months’ imprisonment and after a reduction of one‑third for his plea of guilty a figure of 38 months’ imprisonment on the 1st charge.
14. On the 2nd charge, a starting point of 36 months’ imprisonment with the aggravating factor of the defendant’s previous convictions leads to a starting point for sentence of 42 months’ imprisonment. From that a total of 6 months will be deducted for the defendant’s self-consumption of the drug which brings the figure to 36 months again and then a deduction of one-third for the defendant’s plea of guilty leads to a sentence of 24 months’ imprisonment on that 2nd charge.
15. To achieve the correct overall total, I order 8 months of the 2nd charge run consecutively to the 1st charge giving an overall total of 46 months’ imprisonment for both charges.
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