HKSAR v. WONG KA KEUNG RAYMOND

DCCC 282/2018

[2018] HKDC 1358

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 282 OF 2018

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REASONS FOR SENTENCE

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1.  Defendant is convicted of a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on his own guilty plea and agreement to the amended summary of facts.

2.  Drugs involved is 9.03 grammes of a mixture containing 6.20 grammes of heroin hydrochloride, and 40 tablets containing 0.56 grammes of midazolam.

Facts

3.  Around 21:32 hours on 27 December 2017, police were patrolling along Nam Cheong Street, Sham Shui Po, when they spotted defendant crossing the road heading towards Tung Chau Street.

4.  Defendant was intercepted and upon search, it was found inside the left front pocket of his trousers,

(i) foil packs containing total of 40 tablets of midazolam containing 0.56 grammes of midazolam;

(ii) one plastic bag containing 25 packets containing a total of 4.35 grammes of a mixture containing 3 grammes of heroin hydrochloride; and

(iii) one plastic bag containing 30 packets containing a total of 4.68 grammes of a mixture containing 3.2 grammes of heroin hydrochloride.

5.  Upon arrest and under caution, defendant said all drugs were for his own consumption.  Cash of $3,890 and two mobile phones were also found on him.

6.  Under caution and in a subsequent video recorded interview, defendant admitted, inter alia, that the 55 packets were heroin and the 4 tinfoil packets of tablets were midazolam.  He again said that all the drugs were for his own consumption.

7.  The estimated retail value of the heroin and midazolam is respectively $7,278 and $1,760 respectively.

8.  At all material times, defendant was in possession of these drugs for the purpose of trafficking.

9.  Government chemist certificate also confirmed the drugs contents.

Criminal records

10.  Defendant had 14 previous convictions, of which 13 are drug related and three are similar, the last one being in year 2008.

Mitigation

11.  Mr Sher, defence counsel, submitted that the defendant is aged 53.  He is living alone and is single.  He is a casual restaurant delivery worker, earning $5,000 to $6,000 per month.  It is said that he received education up to Form 4 level and had started work at the age of 17 after he left school. 

12.  It is also said that, upon arrest, defendant has been very co-operative with police and has pleaded guilty at the first available opportunity and it is urged by Mr Sher that this court should give the defendant a full one-third sentencing discount.

Sentencing authorities

13.  According to the case of R v Lau Tak Ming & Anor [1990] 2 HKLR 370, the sentencing guidelines for trafficking up to 10 grammes of heroin is 2 to 5 years’ imprisonment.

Sentence

14.  Although the defendant trafficked in two different drugs, 91.7 per cent was heroin hydrochloride.  According to the Court of Appeal case of HKSAR v Wong Kam Wo, CACC 469/2000, trafficking in midazolam is far less serious than trafficking in heroin.

15.  In that case, the defendant pleaded guilty to a charge of trafficking in dangerous drugs.  The drugs involved were a mixture containing 12.05 grammes of heroin hydrochloride and 103 tablets containing 1.928 grammes of midazolam maleate.

16.  The Court of Appeal said that even if the quantity of midazolam had, for argument’s sake, been a further quantity of heroin weighing about 2 grammes, it is most unlikely that the sentence would have been affected and they said that it would be inappropriate for the defendant to have received any additional sentence merely because midazolam was a drug of a different nature to heroin.

17.  Likewise, in our case here, when the midazolam is only 8.3 per cent of the total narcotics, this court sees no reason why the view taken by the Court of Appeal in the Wong Kam Wo case should not be followed.

18.  Trafficking in dangerous drugs is a serious offence and in usual circumstances, it is well established that personal background and circumstances is not considered valid mitigating factor.  This court has considered mitigation advanced by defence counsel. The most valid mitigating ground is that of his timely plea, of which he is entitled to one-third sentencing discount.

19.  In the circumstances, adopting the guideline in Lau Tak Ming, the sentencing starting point in this case is 3 years 4 months and 2 weeks and, after affording the defendant the full one-third sentencing discount, the defendant is sentenced to 2 years and 3 months’ imprisonment.