HKSAR v. POON CHEUK MAN, WILSON

DCCC1045/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1045 OF 2012

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

2.  You have admitted that on 17 September 2012 at the male public toilet at Luen Wan Street, Mong Kok, Kowloon, you unlawfully trafficked in 17.25 grammes of a mixture containing 13.19 grammes of heroin hydrochloride. 

3.  In the afternoon of 17 September, a police officer who was on duty in Luen Wan Street spotted you acting furtively and kept you under observation.  He saw you rush into the male public toilet and followed you. 

4.  Inside the public toilet, you were seen to be squatting down in front of a basin and handling some things in your hand.  He then saw you immediately conceal some of these items in your right front jeans pocket.  He revealed his police identity and conducted a search upon you.  He found 45 packets of heroin kept inside a transparent resealable plastic bag wrapped with newspaper.  He arrested you and under caution you told him you just bought those 45 packets of white powder and claimed they were for your own consumption and they were cheaper to buy in one go and it cost $140 per packet.

5.  At the time of arrest you had upon you cash of $19,000 odd.  You were charged for trafficking and brought before the Kowloon City Magistrates’ Court and remanded in custody on 18 September.  The following day when you were at Lai Chi Kok Reception Centre, a Correctional Service officer found 9 further packets of heroin which you had passed in your stool. Then the following day, another Correctional Service officer discovered a further 4 packets in your stool.  He also later found upon you a tissue packet with some traces of drugs and a cone with traces of drugs. 

6.  All in all, therefore, you had swallowed 17 packets of heroin.  Although you had passed all of them out, 15 of them were found by Correctional Services officers in their original form and two of them you tried to hide.  You have agreed that the street value of the drugs was about approximately $11,000.

7.  Mr Stanley Chan, your solicitor, has made full mitigation on your behalf today and I have taken into account all that he has had to say. 

8.  You are 42 years of age and single. You have been to court on 11 occasions and have 14 previous convictions, seven of them are for possession of dangerous drug, one of them is for possession of equipment fit and intended for smoking or injecting or inhaling dangerous drugs and two of them are similar to the present charge of trafficking in dangerous drugs which were in 2006 and 2010 to which you were sentenced to 12 months and 16 months’ imprisonment respectively.

9.  Mr Chan has informed me that you are a drug addict.  However, because of your addiction and your previous convictions, you have found it difficult to find a steady job.  I am told that your sister offered you a job as a salesman and gave you $20,000 to buy new clothing for your intended job.  You used this money to buy the 60 packets of heroin.  You have said that the packets of heroin were partly for your own consumption and partly for sale. 

10.  Having heard mitigation from Mr Chan and asking him what part of it was for self-consumption, he said approximately 3 grammes. However, after taking into account the factors in Wong Suet Hau, Ice CACC366/2000, at paragraph 34, I indicated that it was difficult to accept that that amount was for self-consumption, and if Mr Chan, on your behalf, wished the court to accept that, then it would necessitate the holding of a Newton Inquiry.  Mr Chan then said that you would not ask for a Newton Hearing and would respect my decision in this regard. 

11.  I reject the mitigation that you have raised that some of the drugs was for your own consumption.  In determining rejecting your submissions, I have taken into account the quantity of drugs involved, that is 62 packets, the quantity being 17.25 grammes, the value of at some $11,000 odd, the many packets of drugs, the fact that they were discovered not at your residential address but in a public place, they were carried by you in a public place, and lastly your ability to pay for the drugs.  I reject the fact that you used your sister’s money of $20,000 to buy drugs.  Furthermore, you also had $19,000 cash on your person.  On top of that, you have two previous criminal records for trafficking in dangerous drugs. 

12.  In those circumstances, I would reject any mitigation that is before me that a quarter of the drugs were for your own consumption.  In those circumstances, I take the full amount of the drugs, that is 13.9 grammes of heroin, as an amount for trafficking in dangerous drugs. 

13.  Defendant, you are not a newcomer to drugs. This is not your first offence of trafficking in dangerous drugs.  You knew full well that this quantity and amount of drugs if you were caught would amount to trafficking in dangerous drugs.  I am more than satisfied that the whole amount was for trafficking in dangerous drugs. 

14.  Mr Chan has rightly referred me to the case of Lau Tak Ming as a tariff of guideline for trafficking in heroin, the quantity of drugs that you had in your possession for trafficking fall in the second bracket of between 10 and 50 grammes and a starting point of 5 to 8 years’ imprisonment after trial.  

15.  In view of the quantity of drugs that you had in your possession, I take a starting point of 5 years’ imprisonment and giving you full credit for your plea of guilty, that term is reduced to one of 3 years and 4 months’ imprisonment to which you shall be so sentenced.