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DCCC 672/2015
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 672 OF 2015
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| Before : |
H.H. Judge G. Lam |
| Present : |
Mr. Gordon WONG, counsel on fiat, for HKSAR. |
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Mr. CHAN Ka Sing instructed by M/s K.M. Tang & Co., assigned by the Director of Legal Aid, for the defendant. |
| Offence : |
Trafficking in a dangerous drug（販運危險藥物） |
REASONS FOR SENTENCE
1. The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is heroin.
Summary of Facts
2. About 6:10 a.m. on 6 June 2015, PCs 13583 and 13874 stopped the defendant for enquiry outside No.266 Ki Lung Street in Sham Shui Po.
3. Upon search, the following items on were found on the defendant :-
(i) from the right front pocket of his shorts, a transparent resealable plastic bag containing 48 pellets which contained a total of 8.11 grammes of a mixture containing 6.10 grammes of heroin hydrochloride; and
(ii) from the left front pocket of his shorts, 2 metal boxes each containing 40 pellets; in other words, a total of 80 pellets which contained a total of 13.35 grammes of a mixture containing 10.12 grammes of heroin hydrochloride.
4. Under caution, the defendant claimed that the "white powder" was for his self-consumption. In his video recorded interview, the defendant claimed that he had just purchased the heroin from a friend before his arrest. He purchased the drugs in bulk in order to get a cheaper price. He also stated his addiction history, consumption rate and source of income.
5. The defendant now admits that he possessed the heroin found on him for the purpose of unlawful trafficking.
Mitigation & Sentence
6. The defendant is now 38 and has 11 conviction records, which include 1 "simple possession" offence and 1 "trafficking" offence. Defence counsel Mr. CHAN submitted that the defendant has been a drug addict for more than 20 years[1], and was sent to a DATC twice[2]. Mr. CHAN further submitted that the defendant had intended to consume 1/3 of the heroin found on him. Mr. WONG for the prosecution did not object to the self-consumption quantity claimed by the defendant.
7. The Court of Appeal has laid down clear sentencing guidelines for trafficking in heroin (see 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. The defendant trafficked in 16.22 grammes of heroin, the appropriate starting point is 5.5 years.
8. Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[3]. There is sufficient evidence to suggest that the defendant was a drug user at the time of arrest. On the other hand, the number of pellets and the way the heroin was packaged strongly indicated that the drug was ready to be trafficked. I am prepared to reduce the sentence to 57 months[4] to reflect the discount for self-consumption.
9. Finally, a one-third discount is given for the guilty plea, reducing the sentence to 38 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 38 months' imprisonment.
[1] The defendant had made the same assertion in his video recorded interview.
[2] His first admission to a DATC was in 1995 (see Part B of his Criminal Record Summary).
[3] See HKSAR v CHOW Chun Sang[2012] 2 HKLRD 1121; HKSAR v WONG Suet Hau & another [2002] 1 HKLRD 69 and HKSAR v CHEUK Kin ManCACC 294/2009 (English translation).
[4] In CHOW Chun Sang, Yeung VP held "We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant." (paragraph 19, p.1126)
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