HKSAR v. PUN MUK YUNG

DCCC 220/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 220 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one offence of trafficking in a dangerous drug. She has agreed the facts of the case and I convicted her of that offence.

2.  The facts show that the offence occurred on 12 January 2015.  Police officers were conducting an anti-narcotics operation in the Butterfly Estate, Tuen Mun.  They observed the defendant returning to her flat.  She was intercepted on entry and items were found on a table in the living room.

3.  There was a plastic box containing a plastic bag which had the drugs in it.  There was a further plastic bag with 8 empty plastic bags; two pieces of paper with some writing on them; cash of 6,430; a roll of aluminium foil, a lighter and a pair of scissors - these would be items for consumption of the drug.

4.  The defendant said under caution that she got the heroin so she could earn money to cover her living expenses. 

5.  The actual drug content of the mixture is 11.6 grammes of heroin hydrochloride, with the street value of $20,611.

6.  The defendant has admitted her antecedents.  She is 46 years old, educated to Form 3 level in Hong Kong, unemployed at the time of arrest.  She was discharged from prison on 6 November 2014.  She gave birth to a daughter in 2003 and then divorced in 2014.  In mitigation, it is said that the child is likely to be fostered.

7.  The defendant’s criminal record shows that she has a total of 10 previous court appearances from 1998 up to 2014.  They are all but one for possession of dangerous drug.  They all relate to possession of dangerous drug or consumption thereof.  She has been sent to a drug addiction treatment centre on a number of occasions and received suspended sentences of imprisonment, and finally in 2011 and 2014 sentences of imprisonment.

8.  In terms of mitigation, the defendant refers to her plea of guilty.  She says that she is remorseful and has a realisation that her addiction is leading her into a more serious criminality in relation to her use of drugs.  She says she has a resolution to shake off her addiction so that she can become a mother to her daughter.

9.  She also asked for recognition that a substantial quantity of the drug in question or the drug seized would be for her own consumption.  In mitigation she said that would be up to one-half of the drug found. 

10.  The court of course can give a discount for the fact that drugs in the circumstances are used for her self-consumption.  The authority of that being the case of HKSAR v Chow Chun Sang, Case No 135/2011.  It was said that when all or part of the drugs were intended for the trafficker’s own consumption, the ensuing discount of sentence should depending on circumstances fall somewhere between 10 and 25 per cent of the basic starting point.

11.  In determining the extent of discount, the court should have regard to factors including the total quantity of drugs involved, proportion of the drugs intended for self-use and nature of the drugs, whether the trafficking was for financial gain organised and premeditated.  One also must look at the background and criminal record of the defendant.

12.  In this case the evidence of significance is the defendant’s addiction, the discovery of materials for consuming the drug located with the drug.  These support the contention in mitigation that a portion of the drugs would be for self-consumption.

13.  The defendant has pleaded guilty to the trafficking in a total of 11.6 grammes of the drug, heroin hydrochloride.  The operative guideline for sentencing in respect of trafficking in heroin is found in the case of Lau Tak Ming.  The quantity places it within the second category which is between 10 to 50 grammes, a sentence of between 5 to 8 years’ imprisonment.

14.  The actual quantity of the drug determining that the starting point of this case should be at the lower end of that guideline sentence.  Thus, the starting point for sentence in this case shall be one of 5 years’ imprisonment or 60 months.      

15.  The defendant has evidence that there should be a discount for self-consumption.  The defendant is clearly a long time consumer of the drug and a person who has been treated for addiction in the past.  I assume with evidence that her addiction continues.  The drug test on her admission to Lowu Correctional Institute on 15 January showed that she was tested positive for opiate amphetamines and benzodiazepines.  Consumption materials were found with the drug and she was clearly going to consume a part.

16.  There was an admission that she would earn money to cover her expenses which would no doubt include her consumption of drug.  The evidence appears to show that the defendant has an overwhelming addiction.  She would no doubt consume a large portion of the drug. 

17.  These factors show that a substantial discount should be given for this factor.  I will discount the starting point by 25 per cent for this.  Thus the starting point for sentence is now 45 months’ imprisonment.  From this figure there will be a one-third discount for her plea of guilty.  This will lead to a final sentence of 30 months’ imprisonment. Yes, that will be the sentence.