HKSAR v. LIU PING CHIU

DCCC65/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 65 OF 2012

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Reasons for Sentence

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1.  The defendant is convicted upon his guilty plea of a single charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.  In sentencing I have taken into account the whole circumstances of the case including the nature and the facts.  In particular, the nature and quantity of the dangerous drugs involved, background of the defendant as well as the mitigation put forward on his behalf. 

3.  The case against the defendant is indeed simple.  Acting on information, at around 1.10 pm on 23 November 2011, a party of police officers was waiting outside Room 4020, 40th Floor, Shing Tin House, Pak Tin Estate, Shek Kip Mei, Kowloon, and intercepted the defendant when he came out from the premises.  A body search was immediately conducted upon which a transparent resealable plastic bag containing five pill bottles which contained a total of seven plastic bags of dangerous drugs were found in defendant’s right jacket pocket.  The defendant immediately admitted to the officer that he sold white powder in order to pay for his medical treatment. The defendant was therefore arrested for the offence of trafficking in a dangerous drug.

4.  On the strength of a search warrant, the police later entered the premises and they conducted a house search there.  The defendant was further cautioned and he admitted that he could only sell those few bottles of dangerous drugs at HK$2,000 and he was going to use the money to subsidise his purchase of oxygen and medical treatment.  At the time of arrest, defendant was in possession of cash of around HK$6,500 and three mobile phones. In the subsequent video-recorded interview, the defendant reiterated what he said to the police when he was arrested.  He further stated that one of the mobile phones found in his possession was to use to contact the drug buyers. 

5.  The seven plastic bags seized from the defendant was sent to the Government Chemist for analysis and it was found that it contained a total of 38.53 grammes of a mixture containing 30.45 grammes of heroin hydrochloride.  The estimated market value of the seven plastic bags of heroin hydrochloride is said to be HK$30,939.  Clearly the defendant possessed the dangerous drugs for the illegal purpose of trafficking. 

6.  The defendant is now aged 38.  He is a divorced person.  He had only a primary education level.  In the past, he had altogether 17 previous convictions with one similar possession of the dangerous drugs for purpose of trafficking back in 1983.  His last conviction was in 2000 for the possession of dangerous drugs for which he was sentenced to 6 months’ imprisonment.

7.  Mr Lai, his solicitor, informed the court that the defendant was doing odd jobs, especially a transportation worker, until a year ago when he was unemployed.  Since then he became living on public assistance of about $3,000 a month.  The reason why he has committed the present offence is because the defendant has lung diseases and is suffering also from high blood pressure and therefore he needs money to purchase oxygen and also to subsidise his medical treatment. 

8.  Mr Lai also submitted to the court a Court of Appeal decision, HKSAR v Yeung Ka-shing & Or CACC163/1997.  In that case the Court of Appeal said that 6½ years was an entirely proper starting point for a case involving heroin of about 29.70 grammes.

9.  Trafficking in dangerous drugs is of course a very serious offence.  Anyone who was involved in this kind of criminal behaviour would expect no mercy from the court once he was caught.  As far as the sentencing guideline for heroin is concerned, the Court of Appeal has laid down clear guidelines in the case of R v Lau Tak Ming & Ors [1990] 2 HKLR 370.  The sentencing guideline is 5 to 8 years’ imprisonment for 10 to 50 grammes of heroin.  On that basis, for the quantity involved in the present case, a sentence of 6 years and 6 months as a starting point is appropriate.  Having considered the whole circumstances of the present case, I see no reason to depart from this guideline.  Of course I have sympathy for the defendant’s physical condition and his illness but it cannot be an excuse for committing crime to fund his medical bills. 

10.  Although the defendant had a number of previous drug‑related records in the past, especially a similar trafficking record, those were more than 20 years ago and his last conviction was already in 2000 so I am not going to enhance the sentence by reason of his past criminal records.

11.  The only mitigating factor as I can see in this case is defendant’s plea of guilty for which he will be receiving the customary one-third discount.  The defendant is therefore sentenced to a total of 52 months’ imprisonment and that is 4 years and 4 months.