HKSAR v. KWAN SIU CHEUNG

DCCC 1086/2017

[2018] HKDC 875

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1086 OF 2017

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two charges, the first being trafficking in a dangerous drug. In that charge, he has unlawfully trafficked 4.71 grammes of a mixture containing 3.75 grammes of heroin hydrochloride. The 2nd charge is possession of apparatus fit and intended for the inhalation of a dangerous drug. In his home the police found a plastic straw and a pile of tin foil used for inhaling heroin.

2.  On 1st September last year at about 4 o’clock, the police intercepted the defendant as he left his home.  They were armed with a search warrant, and obviously the premises or maybe the defendant was the target.  They searched the defendant, and in his hand he was holding a resealable transparent plastic bag containing 17 packets of heroin.  They were separated into eight pink pellets and nine red pellets. They also found $18,000‑odd in the defendant’s pocket.

3.  Under caution, the defendant said the drugs were for his own consumption, and he was on his way to hide them behind water pipes on his floor where his flat was.  The police then searched his premises and found in his bathroom the following items:  a plastic bag containing 55.2 grammes of caffeine in a plastic bottle, which also contained a plastic straw, a lighter, a pile of tin foil; a machine that is used to clasp and seal plastic; a pair of scissors; an electronic scale and a bag that contained a pile of plastic strips that had already been cut up - they were red and pink in colour; all items one can describe as paraphernalia for packing drugs.

4.  Under caution, the defendant had other descriptions for their usage.

5.  As for the cash found in his pocket, he said it was his monthly salary.  He explained that he had purchased the drugs earlier that day for $2,500.  Being an addict, he needed two to three packets a day, and he would inhale it using the tin foil, and it was agreed that the estimated street value is $2,990.

6.  According to the authority of R v Lau Tak Ming [1992] HKLR 370, the Court of Appeal has said where up to 10 grammes of heroin is trafficked, a starting point of between 2 to 5 years is appropriate.

7.  Mathematically speaking, 3.75 grammes would attract a 3‑year and 2‑month sentence.

8.  I have heard mitigation put forward on the defendant’s behalf, and everything that can be said has been said.  The defendant is 54 years old, divorced, and now lives alone.  He is a part-time construction worker.  He does have a criminal record.  He has 13 convictions over 12 court appearances.  He has 6 drug‑related offences.  All of them are possession of dangerous drugs.  This is his first trafficking offence.  His first possession of dangerous drugs offence was in 1993 and his last in 2013, but I have been told today in mitigation that he has been hooked on heroin since 1988.

9.  As for the heroin related to this offence, the defendant had only just received his salary before he was arrested.  He had used some of it to pay for the heroin, and he intended to or was able to share some of it with his friends, but the main purpose for buying it was for his self‑consumption.  He had no intention to sell any of it for financial benefit.

10.  The prosecution did not challenge the mitigation that the defendant is a drug addict and that part of the drugs would be for self‑consumption.

11.  The defendant’s best mitigation today is his plea of guilty.  What I will take into account is despite the defendant’s criminal record, it is his first trafficking offence.

12.  I intend to take a starting point for Charge 1 of 36 months; that is, 3 years, for that amount of heroin. For Charge 2, I have considered the authority of HKSAR v Eriksson Rickard Wilhelm CACC 454/2002.  There, the Court of Appeal said a 9‑month starting point is appropriate and not excessive for possession of apparatus, Charge 2.

13.  Turning to the defendant’s mitigation of self‑consumption, I have to refer myself to the authority of HKSAR v Wong Suet Hau and Another [2002] 1 HKLRD 69, as well as HKSAR v Chau Chun Sang [2012] 2 HKLRD 1121.  In the former case, the Court of Appeal have accepted that if a significant portion of the dangerous drug is for one’s own use, then the court can adjust the sentence to reflect that not all of the dangerous drugs is for trafficking, but it is not necessary for the sentencing judge to quantify the proportions.  In Chow Chun Sang the Court of Appeal held that a discount of between 10 per cent and 25 per cent from the basic starting point would be considered appropriate.

14.  I take into account and accept that the defendant is a long‑term drug addict and did have paraphernalia in his own home for self‑consumption, so I am prepared to accept that part of the dangerous drugs may have been for his own use. 

15.  I will reduce the starting point by about 17 per cent, which is 6 months.  That will reduce the starting point to 30 months.

16.  Stand up, please, defendant.  You have pleaded guilty, which means you are entitled to a discount of one‑third.  When I reduce that starting point by one‑third, it is reduced to 20 months.

17.  Therefore, for Charge 1, you are sentenced to 1 year and 8 months.

18.  For Charge 2, I have taken a 9‑month starting point, which I now reduce by one‑third.

19.  Therefore, for Charge 2, you are sentenced to 6 months’ imprisonment.

20.  Charge 1 and 2 will be served concurrently.

21.  Therefore, the total sentence will be one of 1 year and 8 months.  Do you understand?

DEFENDANT: Understand.