|
DCCC 165/2018
[2018] HKDC 1359
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 165 OF 2018
----------------------------------------
----------------------------------------
| Present: |
Ms Cannise Chan, Counsel on fiat, for HKSAR |
|
Ms Chan Man Wai, Vivien, instructed by Joseph P K Pang
& Co, Solicitors & Notaries LLP, assigned by the Director
of Legal Aid, for the defendant |
| Offence: |
Trafficking in dangerous drugs (販運危險藥物) |
--------------------------------------
REASONS FOR SENTENCE
--------------------------------------
Background
1. Defendant is convicted of a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on his own guilty plea.
2. Drugs involved is 23.68 grammes of a mixture containing 19.29 grammes of heroin hydrochloride, 150 tablets containing 0.68 grammes of methadone, and 115 tablets containing 1.62 grammes of midazolam.
Agreed facts
3. At around 4:25 pm on 22 December 2017, the police were on anti-narcotics operation. They entered the flat at 2nd Floor, No 55 Lung Kong Road, Kowloon City, Kowloon, Hong Kong, of which the metal gate and the wooden door were open. The door of this Room 6 was left open and the Defendant was seen inside the room.
4. The room was subsequently searched and following items were found inside the drawer of a cabinet:-
(a) one ‘gold-coloured’ metal box containing three transparent resealable plastic bags containing:-
(i) 13.8 grammes of a mixture containing 11.4 grammes of heroin hydrochloride, 3.92 grammes of a mixture containing 3.23 grammes of heroin hydrochloride, and 4.15 grammes of a mixture containing 3.24 grammes of heroin hydrochloride respectively; as well as
(ii) two pellets in red plastic sheet wrapping containing a total of 0.44 grammes of a mixture containing 0.35 grammes of heroin hydrochloride; and
(iii) another four pellets in white plastic sheet wrappings containing a total of 1.37 grammes of a mixture containing 1.07 grammes of heroin hydrochloride;
(b) one blue metal box containing:-
(i) 15 foil packs containing a total of 150 tablets containing 0.68 grammes of methadone; and
(ii) 16 foil packs containing a total of 115 tablets containing 1.62 grammes of midazolam; and
(iii) an electronic scale; as well as
(c) two mobile phones.
5. Government Chemist subsequently confirmed the narcotic contents of the drugs said.
6. The total drugs seized were 23.68 grammes of mixture containing 19.29 grammes of heroin hydrochloride, 0.68 grammes of methadone and 1.62 grammes of midazolam.
7. The estimated value of these drugs is HK$20,293.70 for the heroin and HK$5,060 for the midazolam as at December 2017.
8. At the time of search, Defendant had cash of HK$53,730 and RMB¥200 inside his right rear trouser pocket and the room key to this Room 6 was also found in his right front trouser pocket.
9. Defendant was arrested and under caution, he admitted that he received HK$500 in return for bringing these drugs to his flat in San Po Kong.
10. In a subsequent video recorded cautioned interview, defendant admitted, inter alia, that:-
(a) in the morning of the search, he met an unknown man and he was asked to deliver the two boxes to somewhere in San Po Kong at 8 pm that day and he was promised HK$500 as a reward;
(b) he was then passed the two metal boxes. He did open and have a look and confirmed they contained the drugs in question as well as an electronic scale;
(c) he then subsequently returned to his Room 6 and placed the two metal boxes inside his bedroom drawer;
(d) the electronic scale was for weighing the drugs;
(e) he has been living at the premises Room 6 for two months roughly;
(f) he was a CSSA recipient receiving HK$4,200 per month, and
(g) he was a heroin user.
11. It is agreed that at all material times he possessed the drugs seized for the purpose of trafficking.
Criminal records
12. Defendant has 19 previous convictions, of which 16 are drug related and there are three similar.
Mitigation
13. Ms Chan, defence counsel, submitted on behalf of Defendant that Defendant is now aged 68. He is a CSSA recipient receiving $3,100 per month.
14. It is said that he received education up to Primary 3 level and started work at the age of 13. He has worked at different trades. In 1992 he was injured after fall from height while at work and since then he became addicted to heroin to kill the pain from the injuries.
15. Defendant is divorced with two daughters. He was released from prison in connection with his last conviction in August 2017 and he lived alone. It is said that Defendant is now deeply remorseful for what he has done and has pleaded guilty at the earliest opportunity.
Discussion
16. In this drug-trafficking case, there are three types of narcotics involved.
17. The total weight of the narcotics is 21.59 grammes (i.e. 19.29 + 0.68 + 1.62 grammes), of which heroin represents nearly 90 per cent of the total weight whilst methadone represents 3.14 per cent and midazolam represents 7.5 per cent respectively in terms of weight.
18. Had all the narcotics been heroin, following the band for sentencing in the case of R v Lau Tak Ming & Ors, CACC 230/1989, the sentencing starting point would be 5 years and 10 months. The sentencing starting point for heroin content alone lies at 5 years 8 months.
19. There is no specific guideline for trafficking midazolam. Had all the narcotics, i.e. 21.59 grammes, been midazolam, the court would adopt a sentencing starting point of 12 months. In HKSAR v Chan Hung Hoi, HCMA 1203/2006, defendant was sentenced to 8 months’ imprisonment on a guilty plea when he was convicted of trafficking 1470 tablets or 20 grammes of midazolam.
20. Likewise, there is no sentencing tariff set for trafficking in methadone. This court will adopt sentencing starting point for trafficking in 21.59 grammes of methadone at 9 months.
21. As heroin hydrochloride represents nearly 90 per cent of the narcotics seized, this court would adopt in the present case the sentencing starting point at 5 years 9 months.
22. As three dangerous drugs are involved, the defendant is therefore involved in trafficking in a cocktail of drugs. This court would therefore enhance the sentencing starting point by 2 months, as this amounts to an aggravating feature, being the ability of the trafficker to cater to a wider market (see the cases referred to in paragraph 11 of the case of HKSAR v Yim Hung Lui Ricky, CACC 266/2011, unreported), bringing the sentencing starting point to 5 years and 11 months.
23. Further, defendant here has 16 previous convictions relating to drugs, of which three are similar, the last one being a conviction in the year 2013 for which he was sentenced to 3 years and 4 months. He was released from prison in August 2017 in relation to his last conviction on simple possession of drugs and he has committed the present offence within four months.
24. He is therefore considered a persistent offender, which amounts to another aggravating factor. The sentencing starting point is further enhanced by 2 months, bringing it to 6 years and 1 month.
25. Trafficking in dangerous drugs is a serious offence and in usual circumstances it is well established that personal background and circumstances is not considered valid mitigating factor. This court has considered mitigation advanced by defence counsel and it is found that the most valid and mitigating ground is that of his timely plea, of which he is entitled to one-third sentencing discount.
26. It is said also by defence counsel that the Defendant merely acts as a courier in the present case, but as Lunn VP (as he then was) said in paragraph 28 of the judgment in the case of HKSAR v Law Nam Chun, CACC 360/2013:
“‘There is no basis for assuming that the fact of being a courier should be considered a mitigating feature. It never has been a mitigating feature. In 1993, in R v Leung Kim Wah Crim App No 442 of 1992, this Court, then comprising Macdougall JA, Litton JA and Bokhary JA, as each then was, endorsed the sentencing judge’s contention that being a courier was not a mitigating factor and said, in terms, that ‘couriers cannot expect to receive a reduction in sentence simply because they are couriers’.
The courier is the category of trafficker who comes before the court probably more frequently than any other, and is an essential part of the whole nefarious and devastatingly harmful business that is illicit drug trafficking; and there is no basis upon which to assume that, when the court in Lau Tak Ming set its bands and its tariffs, it intended anything other than that the courier would face a sentence based upon the weight of the drugs he or she was carrying, subject of course to such mitigating or aggravating, factors that prevailed in a particular case. Others, taking a more major role, such as the wholesaler, or the importer or, of course, the manufacturer, would expect an aggravation of sentence; if necessary, beyond the limit of a particular band where weight alone would carry the sentence to the top end of the band...”
27. That being said, the defendant in our case is accordingly sentenced to 4 years and 20 days imprisonment.
|