HKSAR v. CHEUNG PO CHOI, TOMMY

DCCC 37/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 37 OF 2014

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Reasons for Sentence

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Plea

1.  Defendant pleads guilty to one count of trafficking in dangerous drugs, which involved 44.23 grammes of a mixture containing 28.87 grammes of heroin hydrochloride and 30 tablets containing 0.41 gramme of midazolam.

Facts

2.  In the afternoon of 10 November 2013, some police officers spotted the defendant riding a bicycle in Sham Shui Po area. They found the defendant suspicious, so they tried to stop him.  The defendant, however, fled from his bicycle.

3.  After chase, police officers caught the defendant.  They found inside his shoulder bag a total of 102 packets containing 44.23 grammes of a mixture containing 28.87 grammes of heroin hydrochloride.  Police also found 30 tablets of midazolam in the defendant’s trousers pocket.  These tablets contained a total 0.41 gramme of midazolam.

4.  At that time, the defendant had about $6,500 with him.

5.  Under caution, he said he had nothing to say.

6.  When he was further interviewed in the police station, he again did not say anything about the drugs and the money found on him.

7.  The street value of the heroin drugs was about $23,000, while that for the midazolam tablets was $1,600.

Record

8.  Between 1982 and 2010, defendant had been in court on 19 occasions for various matters.  He was convicted for various offences, which included a number of drug matters.  Most of these drug matters were only simple possession, but there was one for trafficking in 2002 when defendant was sentenced to prison for 14 months.  In 2005, defendant was again convicted of trafficking in dangerous drugs; this time he was sentenced in the District Court to a prison term of 4 years and 4 months.

Mitigation

9.  In mitigation, defence counsel said defendant is now 54 years old.  The defendant was born in Hong Kong.  He used to work as a carpenter but for the last six to seven years he had been out of a job.

10.  Defendant has been living with his partner for 14 years.  His living in recent years was supported by his partner.

11.  Counsel says defendant has been a drug addict for a long time.  This time, he trafficked in dangerous drugs to make money to support his vice habit.

12.  Counsel says defendant realises that he is coming of age and defendant is minded to repent.  The defendant says he will not do this anymore.

13.  Defence counsel points out the sentence guidelines for trafficking in heroin and midazolam.  The Court of Appeal in the case of Lau Tak Ming [1990] 2 HKLR 370 states 5 to 8 years’ imprisonment as the starting point for trafficking in more than 10 grammes but less than 50 grammes of heroin.

14.  Trafficking in midazolam will attract the same penalty as that for trafficking in methaqualone, which guideline has been laid down in AG vs Chan Chi Man [1987] HKLR 221, where it says trafficking in under 500 grammes or less than 2,000 tablets of such substance has no fixed starting point.

Sentence

15.  The present charge relates to trafficking in two kinds of dangerous drugs, ie heroin and midazolam.  The former has a purity of 28.87 grammes, while the latter is only 0.41 gramme.  As the heroin purity in the present case is 28.87 grammes, I adopt 6 years 5 months’ imprisonment as the starting point for this heroin component, following the guideline laid down in Lau Tak Ming.  The midazolam component is only 0.41 gramme, and following the guideline laid down in Chan Chi Man, I just add one more month to the sentence imposed for the heroin component. 

16.  Thus, the overall starting point for the whole charge involving these two drugs will be one of 6½ years’ imprisonment.  The defendant pleaded guilty to the charge, he is entitled to one-third discount for his plea.  I sentence him to prison for 4 years and 4 months.