HKSAR v. YAK CHI HANG

DCCC 373/2023

[2024] HKDC 1356

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 373 OF 2023

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is heroin hydrochloride.

Summary of Facts

2.  About 5:00 p.m. on 19 October 2022, PC 19566 (PW1)  noticed the defendant near the junction of Woosung Street and Saigon Street in Yau Ma Tei.  Upon seeing PW1 and his colleagues, he turned around and walked away.  The police officers gave chase and intercepted the defendant near the junction of Woosung Street and Ning Po Street.

3.  Upon search, a transparent resealable plastic bag (E1)  was found hidden in the defendant's underpants.  E1 contained :-

(i)  20 granules (consisting of plastic wrappings)  which contained a total of 2.91 grammes of a mixture containing 2.33 grammes of heroin hydrochloride (collectively E2); and

(ii)  a smaller transparent resealable plastic bag containing 22 granules (consisting of plastic wrappings)  which contained a total of 3.37 grammes of a mixture containing 2.69 grammes of heroin hydrochloride (collectively E3).

4.  PW1 arrested the defendant.  In his video recorded interview conducted on 20 October 2022, the defendant admitted that E2 and E3 were heroin and they belonged to him.  He bought them on 19 October 2022 from an unknown person in a nearby park for about $5,000.  He purchased in bulk because of a cheaper price.  He has been a heroin addict for over 10 years.

5.  The defendant was brought to Kowloon City Magistracy on 21 October 2022.  He was remanded in Lai Chi Kok Reception Centre ("LCKRC").  Upon arrival, the defendant informed a Correctional Service officer that he had swallowed dangerous drugs.  He was then placed in solitary confinement pending excrement inspection.

6.  On 22 October 2022, 2 granules (with plastic wrappings)  which contained a total of 0.19 gramme of a mixture containing 0.14 gramme of heroin hydrochloride (collectively E4)  were found in the defendant's faeces.

7.  PC 60763 (PW2)  cautioned the defendant at LCKRC on the same day.  He admitted having swallowed E4 shortly before he was intercepted by the Police on 19 October 2022.

8.  On 23 October 2022, 1 granule (with plastic wrappings)  which contained a total of 0.09 gramme of a mixture containing heroin hydrochloride (E5)  was found in the defendant's faeces.

9.  PW2 cautioned the defendant at LCKRC in relation to E5 on the same day.  He admitted that he had also swallowed E5 before he was intercepted by the Police on 19 October 2022.

10.  The defendant now admits that he possessed E2 and E3 for the purpose of unlawful trafficking.

Mitigation & Sentence

11.  The defendant is almost 47.  He has 12 conviction records, which involved mainly "Theft" offences and 1 "simple possession" offence.  Defence counsel Ms. Chao informed me that the defendant is divorced and has a daughter (aged 13), who resides with his ex-wife.  He was a kitchen worker earning $13,000 to $14,000 per month.  Though divorced, the defendant meets regularly with his daughter and supports her financially.

12.  In mitigation, Ms. Chao submitted that strictly speaking, the defendant had no drug-related conviction at the time of the present offence.  His only "simple possession" offence (KCCC 2654/2022)  was brought up at the magistrates' court together with the present case[1]. Regarding the present

offence, Ms. Chao explained that the defendant is a long-term drug addict since he has been to a Drug Addiction Treatment Centre 3 times in 1998, 2002 and 2012. He was given E4 and E5 for his own consumption in return for his trafficking in E2 and E3. When he saw police officers on the street, he panicked and swallowed E4 and E5.

13.  Drug abuse has always been a problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment, so that there is a deterrent effect.

14.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in heroin (see The Queen v Lau Tak-ming & others [1990] 2 HKLR 370).  For up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment.  In the present case, it is common ground that although mentioned in the Amended Summary of Facts[2] for the purpose of completeness, E4 and E5 (which contained only 0.14 gramme of heroin in total)  do not form part of the charge.  In other words, the defendant trafficked in 5.02 grammes of heroin.  Applying a strict arithmetical approach, the appropriate starting point is 3.5 years.

15.  The defendant might have been a fresh offender of drug offences (trafficking or otherwise), but he is no stranger to heroin and has been to a DATC 3 times for non-drug-related offences.  His lack of drug-related convictions is simply pure luck.  I consider a starting point of 3.5 years' imprisonment to be appropriate and just.  With his timely guilty plea, the sentence is reduced to 28 months.   Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 28 months' imprisonment.