HKSAR v. WAN SHEUNG SUM

DCCC 691/2017

[2018] HKDC 669

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 691 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two counts of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The dangerous drug involved is heroin.

The first charge

2.  At around 1:20 pm on 29 March 2017 near Yung Shu Tau Park in Yau Ma Tei, a police officer spotted the defendant acting suspiciously, in particular, the defendant held something in his fist and contacted the fists of several other persons.  The police thus put the defendant under observation. 

3.  At around 1:30 pm on the same day, police officers intercepted the defendant in the park.  The defendant struggled and some packets were dropped onto the ground from the defendant’s fist.  Those packets were found to be 40 packets containing a total of 6.65 grammes of a mixture containing 4.37 grammes of heroin hydrochloride. 

4.  Upon search, 20 pills of methadone, a mobile phone and cash of HK$2,520 were found in the defendant’s possession.  Under caution, the defendant claimed that all the “No. 4” was for his self-consumption.

5.  In subsequent interview, the defendant admitted under caution that the heroin was for his self-consumption. At around 12:00 noon on that day, he bought the heroin for HK$3,500.  He was unemployed and relied on CSSA with HK$3,500 per month. 

6.  The defendant was then released on police bail after the day of his arrest.

7.  Street value of the heroin is estimated to be around HK$4,741.45.

The second charge

8.  At around 6:57 pm on 3 April 2017 at Man Ming Lane near the junction of Nathan Road, police officers spotted the defendant acting suspiciously.  They thus intercepted the defendant at Wing Sing Lane.  Upon search, a plastic bag containing 40 packets containing a total of 6.92 grammes of a mixture containing 4.71 grammes of heroin hydrochloride was found.

9.  Under caution, the defendant stated that the drug was heroin and he was going to give it to drug addicts at Yung Shue Tau to earn a living.

10.  Street value of the heroin is estimated to be around HK$5,100.

Mitigation

11.  The defendant is aged 58, divorced and had no fixed abode.  He has 42 previous conviction records, 20 of them relate to possession of dangerous drug.  He has not been convicted of any offence of trafficking in dangerous drug before the present case.  He was last convicted of possession of dangerous drug in 2016.  He was unemployed and has been relying on CSSA.  As he was not able to get rid of his drug addiction, he committed the offences in question. 

12.  In mitigation, it was submitted that the defendant was a drug addict.  The heroin found was partly for his own consumption and partly for trafficking.  The court was urged to impose lenient sentences on the defendant.  

Sentence

13.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in heroin (see R v Lau Tak Ming [1990] 2 HKLR 370).  For trafficking up to 10 grammes of heroin, the sentence ranges from 2 to 5 years.  For the first charge, it involves 4.37 grammes of heroin.  I consider the appropriate starting point to be 3 years and 3 months.  For the second charge, it involves 4.71 grammes of heroin.  I consider the appropriate starting point to be 3 years and 5 months. As the defendant committed the second offence while on bail for the first offence, this is an aggravating feature and I therefore enhance the starting point of the second charge by 4 months.

14.  Regarding the claim for self-consumption, I have reminded myself the relevant principles in HKSAR v Wong Suet Hau & anor [2002] 1 HKLRD 69 and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.  In the former case, it was held by the Court of Appeal that where it was accepted that a significant proportion of the drugs were for the defendant’s own consumption, the court should adjust the sentence to reflect the fact that not all the drugs were for trafficking.  However, it was not necessary for the sentencing judge to specify the relative amounts or proportions.  In the latter case, the Court of Appeal held that a discount between 10% and 25% from the basic starting point would be appropriate in cases where all or part of the drugs were intended for trafficker’s own consumption. In the present case, it is clear from the defendant’s conviction records that he has been a drug addict for a long time.  At the time of the first charge, he was found in possession of methadone pills.  In the circumstances, I am prepared to accept that part of the drug was for his own consumption and therefore reduce the starting point for each of the two charges by 4 months to reflect the discount for self-consumption.  Therefore, the starting point for the first and second charges are 33 months and 39 months respectively. 

15.  Since the defendant pleaded guilty to the charges, he is entitled to the usual 1/3 discount on his guilty plea. Therefore, for the first and second charges, the sentence is further reduced to 22 and 26 months respectively.  Given the two offences were committed on two different days at different location, in theory their sentences should run consecutive to each other.  Taking into consideration the totality principle, I am satisfied that a total sentence of 35 months will be sufficient to reflect the criminality of the defendant.  In the circumstances, I order 13 months of second charge to run consecutive to the sentence for the first charge, making a total sentence of 35 months’ imprisonment.  I hereby sentence the defendant to 35 months’ imprisonment.