HKSAR v. YIU MAN CHUN

DCCC 1085/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1085 OF 2013

----------------------------

----------------------------

REASONS FOR SENTENCE

----------------------------

1.  Defendant (male) (aged 49 years) appeared before me this morning and pleaded guilty to a single charge of “trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The particulars of the offence aver that the defendant on 1 October 2013 outside 3^rd Floor, No 134 Portland Street, Mong Kok, Kowloon in Hong Kong unlawfully trafficked in a dangerous drug, namely, 31.32 grammes of a mixture containing 16.37 grammes of heroin hydrochloride.

Facts

3.  According to the amended summary of facts which has been admitted by the defendant, the present case is a simple stop-and-search case.

4.  At around 10.30 am on 1 October 2013, two policemen were patrolling along the staircase of the building situated at No 134 Portland Street, Mong Kok, Kowloon, doing an anti-dangerous-drugs operation.

5.  At that juncture, the defendant was coming out from his residence on Flat C of the 3rd Floor, with a bag, acting furtively.  The two policemen decided to intercept the defendant for enquiry.

6.  As a result, a black plastic bag containing a piece of newspaper wrapping over five transparent plastic bags containing 125 packets of heroin hydrochloride was found inside the front pocket of the defendant’s trousers.

7.  The defendant was therefore immediately arrested and cautioned.  Under caution, he admitted trafficking the drugs seized because he was jobless.

8.  In a subsequent video recorded interview, the defendant confirmed that the drugs seized from him were heroin.

9.  The government chemist also later confirmed that the contents of the drugs seized were of a mixture containing 16.37 grammes of heroin hydrochloride.

10.  Defendant had with him at the time of the arrest cash of only $215.10 and one mobile phone but the aggregate street value of the drugs seized was estimated by the police to be around $18,271.24.

The criminal records and the background of the defendant

11.  In the past, the defendant had numerous criminal records.  He had appeared in court in no less than 36 occasions, starting from 1984 to 2010.  In particular, there were a number of drugs-related offences, including, as it were, ten “possession of dangerous drugs”, four “possession of pipes or equipment fit and intended for smoking dangerous drugs”, and one “smoking of dangerous drugs”. 

12.  His last conviction was in the District Court for an offence of “false imprisonment” and “wounding or inflicting grievous bodily harm”.  His sentence was reviewed later by the Court of Appeal and was increased to 2 years and 9 months.  He was last discharged from prison in February 2012.

13.  It should be noted, however, that this is the first conviction of trafficking in dangerous drugs.

14.  Defendant is still single.  He lives with his parents and also the elder sister in a private estate in Shatin.

15.  In mitigation, Mr Wong, the defendant’s solicitor, informed the court that before the offence, due to a family dispute and in particular with the elder sister, the defendant moved out to live alone. 

16.  During that period, he also met a girlfriend and they fell in love and he decided to provide for her.  Since his girl friend was also jobless, as was the defendant, he foolishly committed the offence in order to solve their economic problems.

17.  Mr Wong reiterated the fact that the defendant was fully cooperative with the police after he was arrested and that it was the first time the defendant committed a trafficking in dangerous drugs offence, albeit he has so many previous convictions.  The defendant had also pleaded guilty in the first available opportunity and therefore saving the valuable court’s time.

18.  According to the tariff guidelines laid down in the case of R v Lau Tak Ming & Others [1990] 2 HKLR 370, Mr Wong emphasised that the present case involves a quantity which should be in the lower end of the tariff within the band which is 5 to 8 years.

19.  Mr Wong said that the defendant was very remorseful and he was confident to quit the habit of drugs after serving the time and so he asked the court to be as lenient as possible.

Sentencing considerations

20.  Trafficking in dangerous drugs is, of course, a very serious offence. Anyone who had committed this offence and was convicted would expect no mercy from the court.

21.  As can be seen from the mitigations, the reason why the defendant committed the present offence was purely economic.  However not all the people who were facing the economic problem will turn to crime to solve their own problems.

22.  Defendant had mentioned that he has to take care of his elderly parents.  The court has much sympathy for them but the Court of Appeal has said in the past that family circumstances is not a ground for mitigation, especially in a serious crime such as the present.

23.  It is only hoped that the defendant really means what he said and that he can quit the habit of drugs, because this is the only way he can reform himself.

24.  The only mitigation which is effective in this case is his plea of guilty and for that he would be entitled to the usual one-third discount.

25.  The present case involves heroin hydrochloride.  The Court of Appeal has laid down tariff guidelines in Lau Tak Ming(supra).  Between a quantity of 10 to 50 grammes of heroin, the starting point should be 5 to 8 years. 

26.  The present case involves 16.37 grammes of heroin hydrochloride.  I shall therefore use 66 months as the starting point.

27.  After giving the defendant the full one-third discount, the sentence is reduced to 44 months’ imprisonment.