HKSAR v. YUEN CHI SHING

DCCC 1143/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1143 OF 2013

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REASONS FOR SENTENCE

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1.  The defendant (male) (aged 35 years) came before me this morning and pleaded guilty to a single charge of trafficking in dangerous drugs.

2.  The particulars of the offence aver that the defendant on 6 October 2013 outside Room 1102, Lee Hong House, Shun Lee Estate, Sau Mau Ping, Kowloon, in Hong Kong unlawfully trafficked in dangerous drugs, namely:-

(a) 14.14 grammes of a mixture containing 8.33 grammes of heroin hydrochloride;

(b) 4.32 grammes of a crystalline solid containing 4.24 grammes of methamphetamine hydrochloride; and

(c) 240 tablets containing a total of 3.28 grammes of midazolam.

Facts

3.  The present case is a stop-and-search case.  At around 8 pm on the day of the offence, the defendant was stopped outside Room 1102, Lee Hong House, Shun Lee Estate, Sau Mau Ping.  As a result of the search, the police found a plastic bag within the backpack carried by the defendant containing all the quantity of drugs as particularised in the charge.  The heroin hydrochloride and the methamphetamine hydrochloride (or more commonly known as “Ice”) were all separately contained in one plastic bag, whereas the remaining midazolam was contained in 24 foil packs.

4.  The total drugs had an estimated retail value of HK$26,704.

Criminal records and the background of the defendant

5.  The defendant had 10 court appearances in the past with 11 convictions, with six drug-related offences, including “Possession of dangerous drugs” and, more importantly, two “Trafficking in dangerous drugs” as well as one “Divan Keeping”. Defendant’s last conviction is in 2006 where he was sentenced to the DATC.

6.  The defendant was born and educated in Hong Kong.  He is still single. Both his parents have passed away.  Defendant was reported to be a construction worker prior to his arrest.

Mitigation

7.  Mr Yuen, the defendant’s solicitor, has submitted to the court a letter written by the defendant for the purpose of mitigation, in which he had explained that the reason why he committed the present offence was that he was devastated by his father’s death before this offence and therefore, feeling depressed, he went back to the old habit of taking drugs.  Defendant promised that he would reflect upon himself and he now realised the wrongful deeds that he had done and how much precious time he had wasted with the drugs.  He further promised that he would, after the release, be a useful member of the society and would stay away from the drug.

8.  Mr Yuen emphasised the fact that the defendant was extremely cooperative with the police and had pleaded guilty in the first opportunity and, therefore, saving the court’s time.

9.  However, both in the defendant’s letter and also in his instructions to Mr Yuen, he was trying to say that the present quantity of drugs were mainly for his self-consumption and that he would also sell some part of the drugs to his friend albeit he emphasised that it was not for profit.

10.  Indeed, that was what he earlier told the police after his arrest under caution.

Sentencing considerations

11.  Trafficking in dangerous drugs is, of course, a very serious offence and anyone who had committed this kind of offence would expect no mercy from the court.

12.  The defendant had in the past been convicted with “Trafficking in dangerous drugs” in the Magistracy, both in 1998 as well as 2002, for which he has been sentenced to 15 months’ and 16 months’ imprisonment respectively. Also, in 2002 he was charged with “Keeping a Divan” and for which he was sentenced to 8 months’ imprisonment.

13.  It is also noted that since 2006 after he was sentenced to the DATC, he has managed to stay away from the trouble with the law for a large number of years.

14.  Mr Yuen told me that was because in 2007 the defendant’s mother had passed away and that became a “wake-up call” for the defendant and since then he managed to kick the drug habit.  But ever since his father’s death last year, the defendant fell into misery and had gone back to the habit of taking drugs.

15.  I have, of course, much sympathy for the defendant’s loss of his parents but that is only an explanation and it is not an excuse which the court can accept for people committing a crime like this.

16.  On the other hand, I have, as the Court of Appeal had always reminded the court below, grave scepticism for the explanation that he had proffered through his lawyer that most of the present quantity of the dangerous drugs are for his self-consumption, especially because the estimated market value of the quantity of drugs is more than HK$26,000.

17.  The defendant could not provide any figure as to how much he had paid for the drugs and when asked further whether the defendant would consider giving further evidence on his ability to pay or whether he would consider giving evidence in court on this aspect, the defendant had declined the invitation.

18.  What is more, he had finally instructed Mr Yuen that he would indeed withdraw his earlier instruction that most of the quantity of the drugs are for his self-consumption.

19.  I, therefore, would treat the whole quantity of the drugs in this case for the purpose of trafficking.

20.  The present offence, as it were, involves three different kinds of drugs:  Heroin, “Ice” and Midazolam.

21.  In HKSAR v Ko Ka Hing [2009] 4 HKLRD 856, the Court of Appeal had identified two different sentencing approaches when a defendant had trafficked in more than one type of dangerous drugs:-

“(a) The first approach is the ‘individual approach’ where an appropriate starting point is determined for each type of a dangerous drug, and they are then combined into an overall starting point prior to any discount;” and

(b) The second approach is the ‘combined approach’ where a starting point is determined for the most serious type of dangerous drug, and it is then adjusted upwards in light of the quantity of the less serious drug in order to arrive at the ultimate starting point; but no such adjustment is required if the less serious drug is present in insignificant quantity.”

22.  Cheung JA went on to say:-

“No matter which approach is taken, the paramount consideration at the end of the day is the totality of the overall starting point”.

23.  Often, it is the combined approach which is more likely to lead to the correct overall sentence.  In this case, we are primarily dealing with both heroin and “Ice”.  As far as the midazolam is concerned, the quantity is only 3.28 grammes or 240 tablets.

24.  According to the case of Chan Chi Man [1987] 2 HKLR 221, the present quantity of the midazolam is insignificant because according to the tariff, for such quantity, the sentence will be only as the court sees fit and so it is up to the court to decide whether a sentence should be passed. Realistically, in relation to all the other two drugs present in the case, I consider that this quantity is insignificant in that it would not affect the overall starting point of the combined quantity of the other two drugs. 

25.  As for heroin, the tariff was laid down by the Court of Appeal in R v Lau Tak Ming & Ors [1990] 2 HKLR 370.  According to the tariff, up to 10 grammes of heroin, the starting point is between 2 to 5 years.

26.  Therefore, for the quantity of 8.33 grammes of heroin hydrochloride, the starting point would be about 54 months.

27.  As for “Ice”, the sentencing guideline is provided in Attorney-General v Ching Kwok Hung [1991] 2 HKLR 125.  According to the tariff, up to 12 grammes of “Ice”, the starting point would be 3 to 7 years.

28.  Thus, for 4.32 grammes of “Ice”, the starting point would  be also around 54 months.

29.  According to the approach suggested by the Court of Appeal in the case of HKSAR v Wong Kin Kau, CACC 269/2009, when dealing with two different kind of drugs, the court can always try to compare the tariffs applicable to both heroin and “Ice” by looking at their respective tariff.  As a result, one comes to the view that roughly 8 grammes of heroin carries roughly the same sentence as 4 grammes of “Ice”.  Therefore, one can see that as far as sentencing is concerned, 8 grammes of heroin is as serious as 4 grammes of “Ice”.

30.  On that basis, the defendant, as suggested in Wong Kin Kau (supra), can be sentenced as if he had 8 grammes of “Ice” or 16 grammes of heroin.

31.  Applying the tariff of both “Ice” or heroin, the appropriate starting point for the combined total of these two types of drugs in the present case comes to an overall 66 months’ imprisonment.

32.  Allowing the ratio of the weight of these two different dangerous drugs and their related ranges of sentence, but also having regard to the aggravating factor that the defendant was, in fact, trafficking not one single drug but in fact, three dangerous drugs, I judge that it would be appropriate to increase the starting point for sentence by 3 months to 69 months’ imprisonment.

33.  The defendant pleaded guilty and that is the only effective mitigation, for which he would be entitled to the usual one-third discount.

34.  In the end, the defendant is sentenced to 46 months’ imprisonment.

( A Kwok ) District Judge