HKSAR v. CHAN KA YU, KEVIN

DCCC 837/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 837 OF 2013

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to two charges of trafficking in heroin and midazolam, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2.  In summary around 6.28 p.m. on the 13 June this year the police intercepted the defendant outside No.  34 San Kan Street in Sheung Shui.  Upon search the police found from the defendant’s right front trouser pocket a plastic bag inside which was 14 plastic packets containing a total of 2.91 grammes of a mixture containing 1.61 grammes of heroin together with 3 plastic packets containing 3 tablets containing 0.03 grammes of midazolam.  Under caution the defendant admitted he was on his way to sell the drugs at a clinic (charge 1).

3.  The defendant was also found in possession of $390 cash, a mobile phone and three keys.  Using the keys the police opened the door of the defendant’s room at 28 San Lok Street in Sheung Shui. Inside the room the police found 87 packets containing a total of 17.81 grammes of a mixture containing 9.85 grammes of heroin and 2 plastic bags containing 95 tablets containing 1.25 grammes of midazolam (charge 2).

4.  In a video interview the defendant admitted that the day before he had bought 120 packets of heroin and 120 tablets of midazolam, some of which he had already sold at the methadone centre in Sheung Shui.

5.  In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Wong. 

6.  In R v Lau Tak Ming[1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years imprisonment and where the quantity of narcotic is between 10 and 50 grammes sentence falls within the range of 5-8 years.

7.  The amount of heroin in charge 1 being 1.61 grammes of heroin I am satisfied the proper starting point after trial is 2 years and 6 months imprisonment.  The amount of narcotic in charge 2 being 9.85 grammes of heroin I am satisfied the proper starting point after trial is 5 years imprisonment.  Trafficking in midazolam being far less serious than trafficking in heroin I am satisfied the possession of 3 and 95 tablets of midazolam respectively should not increase the starting points (see for example HKSAR v Amnuaychoke Nopporn CACC 441/2001).

8.  I am however satisfied there are two aggravating features justifying an increase in the starting points.  These are that the defendant has a previous conviction for trafficking and that thetrafficking was to take place at a methadone clinic.

9.  In Lau Tak Mingthe Court of Appeal stated that in determining sentence a court may properly take into account any previous history of narcotic offences.  The defendant has a long criminal record including twelve convictions for possession of drugs and one for trafficking being the last conviction in 2012 when the defendant was sentenced in the Fanling Magistracy to 16 months imprisonment.

10.  In HKSAR v Ng Kwok Fai HCMA 726/2011 the court said that:

“It is essential that drug dealers, be they small type or not, be sentenced to proper terms of imprisonment to discourage them, particularly, where they commit such offences outside a methadone clinic.”

11.  I am satisfied the starting points are to be increased by 3 months imprisonment by reason of the defendant’s similar trafficking record and 6 months imprisonment by reason of the fact the trafficking was to take place outside a methadone clinic. 

12.  This makes starting points of 3 years and 3 months and 5 years and 9 months respectively.  Giving the defendant full credit for his pleas of guilty reduces the sentence on charge 1 to 2 years and 2 months imprisonment and on charge 2 to 3 years and 10 months imprisonment.

13.  Accepting that the heroin subject of charge 1 was from the same supply of heroin found in the defendant’s home I am satisfied in considering totality of sentence to be served by the defendant I should look at the total narcotic content of the two charges.  In my view the combined total of 11.46 grammes of heroin would attract the same starting point as that taken in charge 2.  In the circumstances concurrent sentences are appropriate.

14.  The defendant is convicted and sentenced to concurrent sentences of 2 years and 2 months imprisonment on charge 1 and to 3 years and 10 months imprisonment on charge 2.