HKSAR v. CHAN YING CHOI

DCCC 872/2017

[2018] HKDC 124

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 872 OF 2017

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of trafficking in a dangerous drug. Particulars are that he on 26^th July 2017 unlawfully trafficked in a 27.13g mixture, which contained 20.33g of heroin hydrochloride, outside Room 1246, Po Ning House of Po Lam Estate in Tseung Kwan O.

Summary of facts

2.  The defendant was intercepted by Police officers at 7am on 26^th July when he left his resident at Room 1246.

3.  4 re-sealable transparent plastic bags were found inside the defendant’s trousers pocket. Each bag contained 33 packets, with 14 in red plastic wrappings and 19 in yellow plastic wrappings. They were later confirmed to contain the narcotic contents being the subject of the charge.

4.  The defendant was arrested. Under caution, he claimed that it was his first time trafficking to earn some money and asked for a chance.

5.  Nothing suspicious was found at the subsequent house search at the defendant’s residence.

6.  At a later video recorded interview, the defendant said that he received the ‘white powder’ from a man called ‘Ah Shing’, whose contact detail he does not have. The defendant met Ah Shing at around 9pm on 25^th July who gave him the bags of drugs and told the defendant to place them inside the rubbish bin in the male public toilet near Yan Oi Street in San Po Kong at 8am the following day. The defendant brought the drugs home and was on his way to make the delivery when he was stopped by the Police.

7.  The defendant claimed that he had not received any reward from Ah Shing. He also claimed that he was ‘white powder’ user, and that the $220 found on his person was part of his Comprehensive Social Security Assistance payment, his only source of income.

8.  The estimated street value of the drugs found on the defendant was $19,181.

Previous convictions

9.  The defendant has 19 convictions from 8 previous court appearances. His last conviction is dated 9^th September 2015, when he was sentenced to 6 months’ imprisonment for the possession of dangerous drugs, the sentence was suspended for 3 years.

10.  The present offence was committed on 26^th July 2017, the defendant therefore committed the present offence during the period of suspension.

11.  This is the defendant’s first trafficking in dangerous drugs conviction.

Mitigation

12.  The defendant is 63 and married to his 52 year old wife. They live together at the charge address. They have 2 daughters aged 25 and 23. They are living on their own and do not contribute to the family financially.

13.  The defendant suffers from chronic diabetes, asthma, hypertension and high cholesterol. The diabetes causes the defendant to have difficulties moving around and he had to stop working as a cook. He has been receiving CSSA since 2008.

14.  The defendant’s wife had been unable to obtain CSSA since the defendant’s arrest, but she had managed to find work as a casual worker at a fruit market to support herself.

15.  Mr Li for the defendant explained that the CSSA payment was insufficient for the defendant and his wife’s living expenses, which was why the defendant had agreed to take the risk of being a courier for the small reward of $500.

16.  Mr Li also pointed out that most of the convictions in the early years were for the possession of dangerous drugs, and that this is the first time the defendant was convicted of trafficking in dangerous drugs. The defendant was a simple courier.

Sentence

17.  The sentencing tariff for trafficking in heroin hydrochloride is as laid down in the case of R v Lau Tak Ming, CACC 230/1989. For narcotic contents of between 10 and 50g, the range of sentence is 5 to 8 years’ imprisonment.

18.  For 20.33g of heroin hydrochloride in the present case, an arithmetical application of the guideline tariff would lead to a starting point of 69 months’ imprisonment.

19.  Although the defendant is not a first offender, his last conviction was back in 2015 for possession of dangerous drugs. Before that, he was last convicted for wounding in 2007 and was fined $4,000. I do not find the defendant’s record an aggravating factor and I will not enhance the starting point on this basis.

20.  I sympathize with the defendant’s illnesses and the difficulties that his wife faces as a result of the defendant being imprisoned. But the defendant was under a suspended sentence when he decided to agree to be a courier for the drugs for $500, he must have known that should he be caught, he will be facing a long sentence. The defendant had, sadly, brought the difficulties upon himself and his family.

21.  The only mitigating factor is the defendant’s timely plea of guilty. For this he is granted the full one-third discount.

22.  The defendant is, therefore, sentenced to 46 months’ imprisonment for the present offence.

Suspended sentence

23.  The defendant was about one year and 2 months from the end of the suspension period when he committed the present offence. The learned magistrate in the earlier case must have wanted the defendant to stay away from using dangerous drugs when he imposed the lengthy suspension period. The defendant did manage to stay out of trouble for about two-third of that period.

24.  Unfortunately, the offence that he had chosen to commit eventually is related to dangerous drugs, and I find that there is cogent reason to activate the suspended sentence that was imposed on him for the possession of dangerous drugs.

25.  Taking a step back, I will order that the full 6 months of the suspended sentence be activated, but that only 2 months of that sentence will be served consecutively to the sentence in the present case, the balance to be served concurrently.

26.  The final total sentence is therefore, 48 months’ imprisonment.