HKSAR v. NG SIU TONG

DCCC 213/2023

[2024] HKDC 100

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 213 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant is convicted of a charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 on his own plea and agreement to Summary of Facts.

Facts

2.  The defendant was intercepted by police in a male public toilet on G/F, Block 23 of Shek Kip Mei Estate at 4:55 pm on 22 October 2022. He was searched and in his possession, they found 1 transparent resealable plastic bag containing a total of 6.43 grammes of a mixture containing 5.48 grammes of heroin hydrochloride in 40 packets as well as 2 foil packs containing 20 tablets containing a total of 0.25 grammes of midazolam.

3.  Upon arrest, the defendant said under caution that he was instructed by others to transport both drugs there for a reward of HK$200.

4.  Urine test on the defendant on 25 October 2022 indicated the presence of opiates and benzodiazepines.

5.  Estimated value of the drugs is HK$5,235.8.

Criminal Record

6.  The defendant has 16 previous criminal records involving 9 dangerous drugs related convictions, of which 3 are similar. The last similar conviction was in the year 2013.

Mitigation

7.  The defendant is now aged 49. He is married and his wife lives in mainland China. He lives alone and has no children. He was educated up to Form 2 level. He has worked as a construction site worker, a transportation worker and a cleaner in the past. Defence counsel submitted that the defendant recently worked as a cleaner and earned no more than HK$2,000 a month and had to rely on CSSA at HK$2,800 a month. It was said that due to his financial situation, the defendant resorted to committing the present offence.

8.  It was said that the defendant began using drugs when he was aged 20 and has subsequently been in and out of the Drug Addiction Treatment Centre. It was said that he committed the present offence in order to finance his drug addiction habit.

9.  Defence counsel submitted that following the guideline in R v Lau Tak Ming & Another [1990] 2 HKLR 370, the appropriate sentencing starting point on trafficking 5.4 grammes of heroin hydrochloride would be 3 years and 8 months’ imprisonment.

10.  In view of the small amount of midazolam in his possession at the time, it was submitted that the total sentence for the defendant should be no more than 3 years and 9 months’ imprisonment even if midazolam is to be taken into account.

11.  It was also submitted that by reason of the defendant’s drug addiction habit, he did consume part of the drugs in question. Defence counsel asked this court to exercise its discretion and give the defendant a sentencing discount in that regard. It was also said that by reason of his guilty plea, he would be entitled to full one-third sentencing discount.

Discussion

12.  On conviction upon indictment of this charge, a person is liable to a fine of HK$5 million and to imprisonment for life.

13.  Following the sentencing guideline in Lau Tak Ming, trafficking 5.48 grammes of heroin hydrochloride would attract a sentencing starting point of 3 years 7 months and 21 days’ imprisonment.

14.  In the case of HKSAR v Yiu Chi Wai, HCMA 624/1997, it was said that the tariff for trafficking midazolam should be identical to that of methaqualone. Under the tariff, the sentencing for trafficking midazolam in quantity under 500 grammes is completely within the discretion of the court.

15.  This court agrees with the defence counsel that having regard to the quantity of the midazolam in the present case, the sentencing starting point is 1-month imprisonment.

16.  Trafficking more than one type of dangerous drug is an aggravating feature, but having regard to the insignificant quantity of midazolam in the present case and the fact that the defendant himself is a drug abuser of midazolam, this court is not going to enhance the sentencing starting point.

17.  The defendant has 3 previous similar convictions, but the last one being in 2013. The court is not going to enhance the sentencing starting point in this case.

18.  Accordingly, having regard to his total culpability in this case, the court considers that the sentencing starting point should be 3 years 8 months and 21 days’ imprisonment. The defendant has pleaded guilty and is entitled to full one-third sentencing discount. He is sentenced to 29 months and 24 days’ imprisonment.

19.  Although this court does not accept the defendant having half of the heroin hydrochloride for his own consumption, this court accepts that he is a drug abuser of heroin and midazolam. For this reason, the court is willing to exercise its discretion and give the defendant 1 month and 24 days’ sentencing discount.

20.  The defendant is therefore sentenced to 28 months’ imprisonment in this case.