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HCCC 456/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 456 OF 2013
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| Before: |
Hon Anthea Pang J |
| Date: |
3 January 2014 at 11.30 am |
| Present: |
Mr Peter Power, SADPP of the Department of Justice, for HKSAR |
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Mr Paul C L Leung, instructed by Alan Ho & Co, for the accused |
| Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: This is the sentence.
The background and the facts
The defendant pleaded guilty in the Eastern Magistrates’ Courts to one count of trafficking in a dangerous drug, contrary to section 4 (1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
He was committed to this court for sentence.
This morning, the defendant confirmed before me his plea and his acceptance of the Summary of Facts.
Briefly, the defendant was found acting suspiciously in the evening of 4 April 2013 when he walked up and down the building and looked around each time when he came out. Finally, the defendant entered the Hang Wan Hotel on the 5th floor of the building. The police followed the defendant and stopped him when he was about to leave the premises. Later, it was found that the defendant had rented a room in the hotel since 1 March 2013, but using another person’s name for registration.
After the defendant was stopped, he was searched. Inside the white plastic bag which the defendant was carrying in his right hand, the police found five transparent plastic bags containing a total of 308 pellets of drug which was the subject matter of the count.
Upon examination, it was found to be a total of 53.72 grammes of a mixture containing 42.71 grammes of heroin hydrochloride with a retail value of about 43,000 Hong Kong dollars.
Under caution, the defendant claimed that the drug was for his own consumption. He reiterated the same when interviewed by way of video-recording, but he now admits that the drug was for trafficking purposes.
Mitigation
The defendant is aged 66 and was educated up to Form 3 level. He has been before the court on 32 occasions. Twenty-eight of his previous convictions were drug-related, including five trafficking in a dangerous drug convictions.
The defendant was last sentenced to a term of 32 months’ imprisonment for trafficking in a dangerous drug in March 2011. He was released in September 2012, yet, he committed the present offence in just about half a year’s time.
It was said that the defendant worked as a part-time staff in a Chinese restaurant between 2011 and April 2013, however, he was unemployed at the time of his arrest. As for his drug addiction, the defendant claimed to have started abusing heroin since 1975, which was consistent with his smoking/injecting dangerous drug conviction record. It was also said that he would spend 500 Hong Kong dollar on drugs per week.
In mitigation, Mr Leung told the court that about one quarter of the drug seized on the day was for the defendant’s own consumption.
When queried by the court as to why the defendant would carry over 10,000 Hong Kong dollars worth of drug with him, running around in the street, and why the drug was packed in small pellets, Mr Leung’s reply was that it was normal for a drug addict to have part of the drug for self-consumption.
Pausing here, I will deal with this claim for self‑consumption straight away.
In HKSAR v Wong Suet-hau & Anor [2002] 1 HKLRD 69, the Court of Appeal said that if a significant portion of the drug was intended for self‑consumption, the sentencing court should address this issue.
However, in the case before me and for the following reasons, I reject the claim of the defendant that about one‑quarter of the drug seized was for his self‑consumption.
Firstly, the defendant was just released from the prison about half a year before the present offence. He was unemployed at the time.
Given such, I do not believe that he had the financial means to acquire one‑quarter of the seized drug for consumption. Moreover, according to what he told the police, the defendant would only spend about 500 Hong Kong dollars on drugs per week.
All these point to the fact that his claim was untrue. In addition, I note that the defendant had a rented room in the hotel. If one-quarter of the drug was for his own consumption, he should have left that part in his room and not carrying it away with him when he was stopped by the police.
All in all, as I mentioned above, I reject the defendant’s claim that part of the drug seized was for his own consumption. Moreover, even if a small amount was for his own consumption, the effect of that mitigation would be offset by the fact that possession of a dangerous drug itself carries with it a penalty.
The sentence imposed
The tariffs for trafficking in heroin were laid down in R v. Lau Tak Ming & Ors [1992] HKLR 370. For trafficking between 10 and 50 grammes of heroin, a term of 5 to 8 years’ imprisonment is called for.
Having considered the amount of heroin involved and the facts of this case, I am going to adopt a starting point of seven‑and-a-half years.
The defendant pleaded guilty, and he would receive a one‑third reduction for that.
In this case, other than his plea, there is nothing which would warrant any further reduction in sentence. The defendant is, therefore, to serve a term of five years’ imprisonment for this offence.
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