HKSAR v. SO KING YEE

DCCC847/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 847 OF 2011

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant has been convicted after trial of one offence of trafficking in a dangerous drug, the quantity being 22.08 grammes of heroin hydrochloride. This puts the defendant in the sentencing range appropriate for 10 to 50 grammes of heroin hydrochloride, which is between 5 to 8 years’ imprisonment.

2.  During the trial it was established that there were 110 packets of drugs wrapped in white and black plastic and there was evidence that the retail value of that drug would have been around $18,700.

3.  The evidence was competent to establish the defendant was in possession of all the drugs.  He did say at all times the drug was for his own consumption, having been bought in bulk but I found proved beyond reasonable doubt that the drugs were clearly possessed for the purposes of trafficking in them.  The drugs were packaged and ready for retail distribution but appeared to be kept by the defendant in a public Sitting Out area in Shanghai Street.

4.  The defendant is aged 62 years.  His antecedents show that he is undoubtedly a long-term drug addict.  His first conviction of possession of a dangerous drug was in 1967, when he was placed on probation. Since then he has been convicted of I believe it is 14 separate offences involving drugs.  The defendant has been sentenced to a Drug Addiction Treatment Centre and also imprisonment for possession of dangerous drugs.  He had one previous conviction for trafficking in 2002, when he was sentenced to 18 months’ imprisonment, and most recently was sentenced to 6 months’ imprisonment in 2010 for possession of a dangerous drug. 

5.  The defendant was unemployed at the time of his arrest.  He is divorced and has a son and one daughter in China, and has been a drug addict for over 42 years.

6.  As far as the mitigating factors are concerned, there is the defendant’s age, his general health condition, and also the fact that he is an addict himself. 

7.  There was some reference to the defendant having been ill during the course of the evidence and also I obtained a medical report on him.  The medical report shows the defendant was most recently examined on 11 June 2011.  He had a history of tuberculosis some 20 years ago. 

8.  On 13 June, which appears to be two days after his examination, he was referred to Accident and Emergency at Queen Elizabeth Hospital for gastrointestinal bleeding. 

9.  There was an examination conducted on 17 June and the report given was a 3 centimetre mass at fundus with normal mucosa and central crater.  He was followed up at the Surgical Clinic at Queen Elizabeth Hospital with drug treatment.  Counsel tells me that he is in receipt of drugs and is scheduled for an operation in December 2012.

10.  The medical report shows the defendant clearly has some problems with his stomach which requires surgery but there is no suggestion in the report that this is in any way a malignant or dangerous tumour.  The fact that the surgery is delayed until 2012 suggests that that is not the case.  I did take the view that if there had been some malignancy it would be a significant mitigating factor in the terms of sentencing, but there is no evidence that that is the case in this matter.  There is just general evidence that the defendant suffers from some ill-health that requires surgery.

11.  The other factor that may be worthy of consideration is that the defendant may well have had some of the drugs for his own consumption but overall I do not consider this to be a significant sentencing factor given the packaging of the drugs.

12.  In cases such as this one is clearly constrained by the sentencing guidelines.

13.  Given the quantity of drugs and the other mitigating factors I have set out, I will adopt a sentence towards the lower end of the appropriate sentencing range.  In this case, I believe that requires that I pass a sentence of 5 years and 3 months’ imprisonment and that will be the sentence I impose.