HKSAR v. CHU PO KUN

DCCC 302/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 302 OF 2013

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REASONS FOR SENTENCE

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Overview

1.  The defendant is convicted on his own plea of one count of “Trafficking in a dangerous drug” (Charge 1) and one count of “Possession of dangerous drugs” (Charge 2).

2.  The drug involved in Charge 1 is 14.03 grammes of heroin whilst 0.83 gramme of heroin and 0.04 gramme of midazolam are involved in Charge 2.

THE FACTS

Charge 1

3.  The facts to which the defendant has admitted reveal that at about 8:25 am on 18January 2013, when police officers were conducting anti-narcotics operation at Sun Tin Wai Estate, Shatin, New Territories, they found the defendant was acting suspiciously.  The defendant was then intercepted for enquiry.

4.  Upon search, it was discovered that two resealable plastic bags were hidden in a pile of newspaper carried by the defendant.  The plastic bags contained a total of 170 pellets of a substance which was later confirmed by Government Chemist that it was a total of 28.54 grammes of a mixture containing 14.03 grammes of heroin hydrochloride. Under caution, the defendant admitted possession of the drug in question.

5.  The estimated street value of the drug seized was HK$40,583.

6.  At the time of the arrest, he had cash of HK$47, a mobile phone and 2 keys on him.

Charge 2

7.  The defendant was later brought back to his residence at Yan Wai House for house search.  At the material time, the defendant’s daughter was present inside the premises.  Upon search, the police officers found:-

(a) a plastic bag containing 7 pellets containing a total of 1.16 grammes of a mixture containing 0.56 gramme of heroin hydrochloride;

(b) a dental clinic resealable bag containing (i) 1 pellet containing 0.26 gramme of a mixture containing 0.2 gramme of heroin hydrochloride; and (ii) 4 foil packs containing a total of 3 tablets and 1 tablet fragment containing 0.04 gramme of midazolam;

(c) one $20 banknote folded into a packet containing 0.24 gramme of a mixture containing 0.07 gramme of heroin hydrochloride and traces of midazolam; and

(d) one $20 banknote folded into a packet containing 0.01 gramme of a mixture containing heroin hydrochloride and midazolam.

8.  As a result, a total of 0.83 gramme of heroin hydrochloride and 0.04 gramme of midazolam were found inside the premises.

9.  Under caution, the defendant admitted possession of the drugs in question.

10.  The estimated street value of the heroin hydrochloride was HK$2,375 and the midazolam was HK$164.5.

11.  In a subsequent video-recorded interview, the defendant admitted under caution the possession of all the drugs seized and that he would mix midazolam with heroin for consumption.

Mitigation

12.  The defendant is now 60 years of age, a married man with two children.  The defendant was educated up to Primary 6. Prior to arrest, he was unemployed and his family was receiving CSSA of about HK$3,000 each month.

13.  In a mitigation letter written by the defendant, he states that he is now very remorseful.

14.  He has 19 previous criminal convictions, 6 of which are for “Possession of dangerous drugs” whilst 2 of which are for “Trafficking in a dangerous drug”.

Sentence

15.  As for Charge 1, sentencing tariffs have been laid down by the Court of Appeal in R v. Lau Tak-ming and Others [1990] 2 HKLR 370.  For trafficking of heroin, where the narcotic content is between 10 to 50 grammes, the starting point is 5 to 8 years’ imprisonment.

16.  In mitigation, it is urged that the defendant is a drug addict and part of the heroin in Charge 1 was for own consumption. It is asserted that the defendant would take one tablet in every 7 days.  In HKSAR v. Wong Suet Hau & Anor [2002] 1 HKLRD 69 the Court of Appeal has laid down the guidelines on how a sentencing judge should approach this issue.

17.  In the present case, there was no paraphernalia such as a considerable amount of resealable plastic bags or electronic scale found on him or inside the premises.  Furthermore when the drugs were seized, they were not packed in small packets which indicated a readiness for distribution.  Given his criminal records and background, I accept that he is a habitual drug addict.  Having considered all the circumstances, I am prepared to resolve this issue in favour of the defendant and find that a small part of the drugs were for the defendant’s own consumption, without holding a Newton enquiry.

18.  In HKSAR v. Chow Chun Sang CACC 135/ 2011[1], the Court of Appeal observed that:-

“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.”

19.  Having considered the quantity involved and all the circumstances, I adopt a starting point of 5 years’ imprisonment. To reflect the factor that part of the drugs was for own consumption, a further discount of 6 months is warranted and this represents a reduction of 10% of the starting point.  To reflect his guilty plea, the sentence is reduced by one-third to 36 months’ imprisonment.

20.  As for Charge 2, having considered the quantity of drugs involved, I adopt a starting point of 6 months’ imprisonment.  The sentence is reduced to 4 months upon plea.  Given the length of sentence for Charge 1 and by virtue of section 54A(1A)(a) of the “Dangerous Drugs Ordinance”, Cap 134, I am not obliged to call for a Drug Addiction Treatment Centre Report before sentence.

21.  Apart from his guilty plea and the discount for self consumption as indicated, I see no other mitigation factors which warrant further discount in the respective sentences.

Totality

22.  Having considered the proximity of the offences and the totality principle, I order that the sentence of Charge 1 to be run concurrently with that of Charge 2.

23.  In the result, the defendant is sentenced to 36 months’ imprisonment.