HKSAR v. CHAN YAT SING

DCCC 67/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 67 OF 2012

____________

REASONS FOR SENTENCE

1.  The defendant pleaded guilty to 2 charges of "Trafficking in a dangerous drug". The dangerous drug involved in both charges is heroin.

Summary of Facts

Charge 1

2.  Some time after 6:00 pm on 9 November 2011, the Police stopped the defendant and a female outside Tai Po Baptist Church Education Hall, Nos.14-18 Wai Yi Street, Tai Po for investigation.

3.  Upon search, a plastic bag containing 30 packets of suspected dangerous drugs (later found to contain a total of 5.02 grammes of a mixture containing 3.53 grammes of heroin hydrochloride) was found in the right front pocket of the defendant's jeans.  Nothing suspicious was found on the female.

4.  Under caution, the defendant admitted that the heroin belonged to him and his girlfriend knew nothing about it.  He further disclosed that more dangerous drugs were at his home.

Charge 2

5.  With the keys seized from the defendant, the Police gained entry into Flat C, 6^th Floor, Kai Hing Building, No.49 Fu Shin Street, Tai Po.  A house search was conducted in the presence of the defendant and his girlfriend.  A bag containing 3 transparent resealable plastic bags containing a total of 88 packets of suspected dangerous drugs (later found to contain a total of 14.61 grammes of a mixture containing 10.15 grammes of heroin hydrochloride) was found underneath a coffee table inside the flat.  A pile of empty transparent resealable plastic bags were also found at the same spot.

6.  Under caution, the defendant admitted that all heroin found in the flat belonged to him.

7.  In his subsequent video-recorded interviews, the defendant admitted under caution that he purchased a total of 120 packets of heroin from a male named "Ah Keung" for $8,000 in a park in Tai Kok Tsui on 6 November 2011.  He took the drug home and hid them under the coffee table.  He intended to sell the heroin to the addicts gathering outside Tai Po Methadone Clinic at $200 for each white packet and $160 for each red packet.  He had already sold 2 packets to someone in Tai Po.  The empty transparent resealable plastic bags found in his home were intended for carrying heroin packets.  He claimed he acted alone and his girlfriend had no knowledge of the heroin found.

Mitigation & Sentence

8.  The defendant is now 33 years old.  He has 12 previous convictions, 6 of which are "simple possession" commencing in 1993.  His last conviction took place at the end of December 2010; he was sentenced to 2 months' imprisonment for "Attempted theft from vehicle". 

9.  Defence lawyer Mr. CHENG informed me that the defendant's father passed away in 1986 (when the defendant was about 8 years old) and the defendant was brought up by his mother.  The defendant had a divorce in 2005.  He and his present girlfriend have a 9-month-old daughter.

10.  Mr. CHENG submitted that the defendant is a drug addict; part of the heroin seized at his home was for his own consumption.  The defendant had to consume about 1 gramme a week.  Mr. CHENG also submitted that this is the defendant's first trafficking offence.  The defendant has been in financial difficulty since the birth of his daughter.  He previously worked as a construction worker, but was living on social welfare at the time of arrest.

11.  Mr. CHENG further informed me that the defendant was diagnosed of psychiatric illness in November 2011.  The defendant is unable to say the name of his mental illness, but he claims to have illusions and would hear noises.  He has been on medication since diagnosis and receives regular treatment at Tai Po Hospital.  A letter written by the defendant and one written by his girlfriend have been submitted.  Their contents are duly noted.

12.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.  I cannot stress this enough.  Furthermore, 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.

13.  The sentencing tariff for trafficking in heroin is laid down in The Queen v LAU Tak-ming & others [1990] 2 HKLR 370.  For 10 to 50 grammes, the sentence ranges from 5 to 8 years' imprisonment.  In this case, the defendant trafficked in a total of 13.68 grammes of heroin.  I bear in mind that for this quantity, the appropriate starting point should be at least 5 years.  I have not overlooked the defendant's claim for self-consumption of part of the drug seized.  The defendant has a long history of addiction and I accept that he is an addict.  He claims that he had to go through about 1 gramme a week.  I will sentence him on the basis of trafficking in 12 grammes, which clearly warrants a starting point of 5 years.

14.  For Charge 1, it involves 3.53 grammes, I adopt a starting point of 3 years.  One-third discount is given for the guilty plea, reducing the sentence to 2 years.  For Charge 2, it involves 10.15 grammes, I adopt a starting of 5 years.  One-third discount is given for the guilty plea, reducing the sentence to 40 months.  Other than the guilty pleas, I see no other mitigating factors (including the defendant's psychiatric illness) which warrant any further discount.  The sentence I pass for Charges 1 and 2 are 2 years and 40 months respectively.

15.  Bearing in mind that for the purpose of sentencing, the defendant trafficked in 12 grammes, an overall starting point of 5 years is appropriate.  In other words, an overall sentence of 40 months is appropriate after plea.  On the basis, I order the sentences in Charges 1 and 2 to run currently, yielding a total prison term of 40 months.