HKSAR v. IU TAK CHUEN

DCCC 707/2024

[2025] HKDC 468

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 707 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two charges of “Trafficking in a dangerous drug” (Charges 1 & 2), contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, and one charge of “Possession of a dangerous drug” (Charge 3), contrary to section 8(1)(a)  and (2)  of the same ordinance.

Summary of facts

Charge 1

2.  On 9.1.2024 at around 1611 hours, police officers spotted the defendant leaving his residence at Room 106, 1/F, Block C, Lok Tak Lau, Lok Man Sun Chuen, Hung Hom with a plastic bag (E4)  and walked towards the staircase.  D suddenly squatted down and dropped a plastic bag (E4)  from his left hand on the ground outside the Meter Room. D was immediately intercepted by police officers.

3.  Inside E4, a resealable transparent plastic bag containing 35 packets containing 5.76g of heroin (E1)  was found.  The defendant was arrested for “Trafficking in a dangerous drug”.  Cash HK$541.9 and a mobile phone was found on him upon body search.

Charge 2

4.  The defendant was brought back to his residence for house search.  Upon search, 4 resealable transparent plastic bags containing 139 packets wrapped by plastic sheets containing a total of 22.74g of heroin (E2)  were found inside the top drawer of a wooden cabinet. D was arrested again for “Trafficking in a dangerous drug”.

Charge 3

5.  With the assistance of a police dog, one resealable transparent plastic bag containing 1 packet wrapped by a plastic sheet containing 0.15g of heroin (E3)  was found among a stack of the sneakers placed near the main door.  The defendant was further arrested for “Possession of a dangerous drug” and he claimed under caution that the drug was the leftover for his consumption.

6.  In a subsequent video-recorded interview, D stated, under caution, among other things, that:

(a)  he was contacted on the phone by an unknown male to collect drugs and pass them to others for subsequent sale; he would receive HK$300 per plastic bag;

(b)  on each occasion, the heroin and the HK$300 would be wrapped by newspaper and dropped in the vicinity of his residence; and

(c)  he had never seen those delivering the drugs to him.

7.  The Government Chemist confirmed the narcotic contents of E1-E3.

8.  The estimated street value of E1 was HK$6,005.88, that of E2 was HK$23,463.27 and that of E3 was HK$156.87.  The total estimated street value of E1-E3 was HK$29,626.02.

Criminal Record

9.  The defendant has 12 court appearances for 13 convictions, including 7 for “Possession of a dangerous drug” and 1 for “Trafficking in a dangerous drug”.  He had been sentenced to DATC twice but was only given a fine on 29.6.2018 for the last conviction of “Possession of dangerous drug”.

Personal Background

10.  The defendant is 61 years old of age, single.  He was educated up to primary 4 and used to work as a construction worker.  Due to the impact of Covid, he became unemployed and had to rely on CSSA.

11.  The defendant is the youngest among 7 siblings in the family but he only remains in contact with one elder sister.

Mitigation

12.  Counsel for the defendant submitted that the defendant pleaded guilty to all 3 charges at the earliest opportunity and urged the court to grant him the full 1/3 discount.

13.  Counsel pointed out that as Charges 1 and 2 were committed in one continuous incident and in very close proximity, their respective sentences should be made concurrent.

14.  In relation to Charge 3, Counsel referred to the cases of HKSAR v Mok Cho Tik, CACC 165/2000 and HKSAR v Muhammad Waqas [2019] 4 HKLRD 323 and submitted that the 0.15g of heroin was just “the left over” after the defendant’s own consumption and invited the court to adopt a lower starting point than that of 12 - 18 months. Counsel also submitted that the very small quantity of heroin would give rise to little latent risk.

Sentence considerations

Charges 1 & 2

15.  In the case of HKSAR v Wan Lau Mei（尹劉美）[2014] 4 HKC 75, which involved 2 charges of drug trafficking, the Court of Appeal said at paragraphs 27 - 30 that when sentencing two trafficking offences:

“where different quantities of dangerous drugs are found in the accused’s possession on the same day but at different locations, ...the judge should regard the two offences as representing one occasion of possession of the total amount of drugs and impose sentences on both offences for that total, making the sentence concurrent with one another.

Such an approach more truly reflects the accused person’s culpability as the reality of the situation is that on the day of the charges the accused was in overall possession of the drugs found at the two locations. It is also an approach which ensures that the accused’s final sentence is not artificially inflated by separating out the drugs of the two charges as though the accused had been guilty of two quite separate offences and then imposing consecutive sentences.”

16.  Given the close proximity under which Charges 1 and 2 were committed, I will add up the two quantities of heroin involved, ie, (5.76g + 22.74g)  28.5g and deal with them as one single transaction.

17.  Following the six-step approach in Herry Jane Yusuph [2021] 1 HKLRD 290, the trafficking of 28.5g of heroin falls into the band of 10 to 50 grammes with a starting point of 5 to 8 years (HKSAR v Huang Ruifang（黃瑞芳），CACC 106/2022).

18.  Based on the defendant’s admissions under caution and the facts of the case, I accept that he was acting as a courier at the time of the offences.  As such, I take 6 years 5 months’ imprisonment as the starting point for both charges.

19.  The defendant has a number of drug-related convictions, but the last one was in 2018, which is more than 5 years ago. I therefore do not regard them as an aggravating factor.

20.  Given the defendant’s timely plea of guilty, I give him the full 1/3 discount.  As a result, I sentence the defendant to 51 months’ imprisonment for each of Charge 1 and 2 and order them to run concurrent to one another.

21.  Taking a step back, I consider 51 months’ imprisonment is a fair and just sentence in all the circumstances.

Charge 3

22.  While 0.15g of heroin is a small quantity, I still find it sufficient to be “measured and used”.  Nevertheless, I agree with Counsel’s submission that a lower starting point should be adopted, and I also accept that the latent risk involved was low given the small quantity.  All in all, I think a starting point of 9 months is appropriate and reduce it to 6 months to reflect the defendant’s plea of guilty.

23.  Considering totality and the fact that all 3 charges are closely related, I order the sentence on Charge 3 to run concurrent to that of Charges 1 & 2.

Sentence

24.  For Charge 1 and 2, the defendant is sentenced to 51 months’ imprisonment each, the sentences are to run concurrently.

25.  For Charge 3, the defendant is sentenced to 6 months’ imprisonment, which is to run concurrent to that of Charge 1 and 2, making a total of 51 months’ imprisonment.