COURT: The defendant, Poon Tseung-chun, pleaded guilty to two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, before a Magistrate and was committed to the Court of First Instance of the High Court for a sentence.
Facts of the case
On the day in question, customs officers intercepted the defendant outside Block 2 of San Po Kong Plaza, I will call it “the Building”.
Upon search of the black leather envelope the defendant was carrying, the officers found 17 plastic folders, each containing a plastic packet in a form of a thin sheet that contained heroin. The 17 plastic packets contained a total of 271.7 grammes of a mixture containing 212.6 grammes of heroin hydrochloride.
Upon arrest and under caution, the defendant admitted that the seized mixture was dangerous drug belonging to him, so that is the 1st count.
With the keys seized on him, the officers entered the defendant’s flat on 22nd Floor of that building. Upon search of the defendant’s bedroom, the officers seized the following inside a plastic drawer. In a white box: a ziplock bag containing 203 grammes of a mixture containing 155 grammes of heroin hydrochloride, a plastic wrapping containing 16.3 grammes of a mixture containing 12.5 grammes of heroin hydrochloride, a spoon; an electric scale; three plastic bags and two sealing machines; and a pair of gloves.
Under caution, defendant admitted ownership of all the items and acknowledged the nature of them, that is the 2nd count.
The estimated street value of all the heroin seized from both counts was about HK$360,885. That is at the amount of $735 per gramme.
The defendant admitted that he was in possession of the heroin seized on him and in his bedroom for the purpose of unlawful trafficking. Those were the facts admitted by the defendant.
Background and Mitigation
According to the antecedents statement, the defendant was born in 1995. He had no criminal conviction, he is single and studied up to lower Secondary level. He worked as a clerk earning $15,000 prior to his arrest.
Mr Caesar Lo, defence counsel, gave this Court some more details on the defendant. The defendant is now 29 years old. His mother works in a kitchen. His elder siblings are civil servants. The defendant’s late father used to be a taxi driver and had taken out a loan to buy a taxi.
The defendant used to work as a clerk earning $15,000 a month from which he gave $8,000 towards the repayment of the loan for the taxi. Unfortunately, the defendant’s father was diagnosed with liver cancer in May this year, and died shortly after he was admitted into hospital.
Prior to the offences, the defendant lost several tens of thousands of dollars on horseracing and soccer betting. He was lured to take up a part-time job to collect, repackage and deliver drugs for others to make quick money, $2,000 per day.
The defendant is deeply remorseful for his misdeed and has written a letter to this Court expressing his deep regret. He said at first he blamed his bad luck but under the guidance of his family, he finally realised that what he had done was wrong. He also regretted that due to his incarceration, he was not able to help handle funeral matters for the father.
While he was prepared to shoulder the consequence of his wrongful act, he nevertheless asked this Court to give him a chance so that he can be released earlier.
Defence counsel referred this Court to the case of HKSAR v Herry Jane Yusuph which set out the approach for the sentence of trafficking in a dangerous drug. Counsel submitted a starting point of 14 years and 8 months. Counsel submitted the role played by the defendant was mainly that of a courier and packer, and there was no aggravating factors to enhance the starting point. Counsel also urged this Court to give the defendant a full one-third discount.
Consideration for the sentence
Trafficking in a dangerous drug is a serious offence. A person convicted of this offence on indictment is liable to be fined $5 million and to imprisonment for life.
Although there are two counts, both offences were committed on the same day and the facts were closely linked, in that the dangerous drug in Count 1 was obviously connected with the dangerous drug in Count 2. So the proper approach is to have regard to the total amount of dangerous drug in Count 1 and 2 so as to arrive at an overall starting point. There are cases supporting this, for instance, HKSAR v Chow Yu Chi, HKSAR v Cheung Kwok Leung, and HKSAR v Wong To.
So I will follow the six steps laid down in the case of Herry Jane Yusuph.
First step
The total dangerous drug involved as 380.1 grammes of heroin and that falls in to the bracket of 200 to 400 grammes with a starting point between 12 to 15 years, and that is the case of Lau Tak Ming.
Second step - the role of the defendant
The role of the defendant was that of a packer and courier. He was not the mastermind or in a managerial position. He acted according to instructions from another person.
Third step
Bearing in mind the role of the defendant and the circumstances of the offences, I am of the view that a starting point of 14 years and 8 months is appropriate.
Fourth step - Aggravating factors
There are none. So there are no aggravating factors to enhance the starting point.
Fifth step - Mitigation
The only mitigation that could be advanced is the defendant’s timely plea. The defendant will get a full one-third discount.
The sixth step
With a one-third discount, the sentence is 9 years and 9 months, and I am satisfied that this sentence is fair, just and balanced in all the circumstances of the offence and the offender.
Actual sentence
Count 1, trafficking in a dangerous drug, 9 years and 9 months. 2nd count, trafficking in a dangerous drug, also 9 years and 9 months. Both sentences to run concurrently, making a total of 9 years and 9 months.