HKSAR v. CHAN SIU FAI

DCCC 1089/2017

[2018] HKDC 614

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1089 OF 2017

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of possession of 5.24 grammes of a mixture containing 3.77 grammes of heroin, contrary to section 8 of the Dangerous Drugs Ordinance[1].

2.  In summary at around 8.26 p.m. on 22 September last year the police intercepted the defendant outside the ground floor of Sheung Fu House in Upper Ngau Tau Kok Estate.  The police found inside the right front pocket of the defendant’s jeans twenty-four packets containing the heroin.  Under caution and in a subsequent video recorded interview the defendant admitted that he bought the heroin for his own consumption.  

Mitigation

3.  In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Chiu together with the defendant’s mitigation letter. 

DATC report

4.  By virtue of section 54A of the Dangerous Drugs Ordinance no sentence of imprisonment may be imposed for the offence of possession of a dangerous drug without first considering the suitability for cure and rehabilitation.

5.  The report reveals the defendant is married, living with his wife and two young children and that prior to his arrest he was relying on CSSA.  The defendant was first tempted to take heroin in the early 1990’s and last took heroin in September last year, the month he was arrested.    

6.  The defendant has never been sentenced to DATC or joined any voluntary drug treatment programme.  Due to the fact the defendant has been in custody since his arrest in September last year the Medical Officer is of the opinion the defendant is not a drug dependant.   

Possession of heroin

7.  In HKSAR v Mok Cho Tik[2]the Court of Appeal held that the starting point for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months.

8.  I am satisfied a starting point of 12 months’ imprisonment is appropriate for 3.77 grammes of heroin.

Latent risk

9.  In considering latent risk Mr Chiu refers the court to HKSAR v Wong Wai Wah where McWalters JA discussed the approach to be taken in assessing the latent risk of the drugs possessed falling into the hands of others[3].  Mr Chiu also refers the court to the reasons for sentence in HKSAR v Chan Chi Wah where Judge Casewell enhanced by 3 months’ imprisonment the starting point of 15 months’ imprisonment for 2.58 grammes of heroin contained in twenty-five pellets[4].

10.  Taking into account that the defendant was arrested on the street with 3.77 grammes of heroin contained in twenty-four packets; the defendant has two previous convictions for trafficking in drugs in 1995 and 2010 and was a recipient of CSSA,I am satisfied there was a very clear latent risk that the drugs could have fallen into other hands.  In the circumstances I enhance the starting point by 9 months to 1 year and 9 months’ imprisonment. 

11.  Giving the defendant full credit for his plea of guilty the defendant is convicted and sentenced to 14 months’ imprisonment.