HKSAR v. HO KAI YUEN

DCCC849/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.849 OF 2010

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Reasons for Sentence

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The defendant was charged for:

1. Possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134
2. Possession of equipment fit and intended for the smoking of a dangerous drug, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap.134
3. Trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

The defendant pleaded guilty and admitted the facts, he is convicted accordingly.

Facts

On 16 April 2010, Police entered the premises in question with a search warrant. A search was conducted on the defendant and found the following:

1. 6 packets containing a total of 1.41 grammes of a mixture containing 1.14 grammes of Heroin Hydrochloride.
2. 6 packets containing a total of 0.92 grammes of a mixture containing 0.75 gramme of Heroin Hydrochloride.
3. 1 paper packet containing 0.15 gramme of a mixture containing 0.09 gramme of Heroin Hydrochloride.
4. 6 packets containing a total of 6 tablets containing 0.08 gramme of Midazolam

Under caution, the defendant admitted that the abovementioned dangerous drugs were for his own consumption (Charge 1).

Police further found from the premises one plastic container contained 6.78 grammes of a powder containing Caffeine, one piece of straw rolled by white paper sheet and tin foil, one piece of string and some tin foil.

Under caution the defendant admitted the abovementioned items belonged to him and he used them to smoke Heroin (Charge 2).

At time of arrest the defendant had $2,182 in cash with him, and the estimated street value of the drugs in charge 1 is about $2,240.The defendant was charged and granted court bail; he was scheduled to appear before the Magistracy on 2 June 2010.

On 1 June 2010, the defendant was stopped and searched by police, the following were found from his right front trouses pocket:

1. 5 red packets containing a total of 0.80 gramme of a mixture containing 0.44 gramme of Heroin Hydrochloride.
2. 3  white packets containing a total of 0.71 gramme of a mixture containing 0.38 gramme of Heroin Hydrochloride.
3. 10 black packets containing a total of 10 tablets containing 0.13 gramme of Midazolam.

Under caution the defendant admitted he was to deliver the abovementioned dangerous drugs for a reward of $200 (Charge 3).

At the time of arrest he had $273.4 cash with him. The estimated street value of the drugs in charge 3 is about $2,520.

In regard to the possession charge, all together there were 13 packets of heroin and 6 tablets of midazolam, I consider there is a high risk that some of the drugs would be passed to others. I consider the appropriate starting point for charge 1 to be 21 months, and 6 months for charge 2.

In considering the sentence for trafficking, I refer to the tariff in Lau Tak Ming, for heroin up to 10 grammes is 2 to 5 years. I considered the appropriate starting for the total quantity of drugs in question to be 2 years. The total quantity of the charge including that of Heroin and Midazolam, which are two different kinds of drugs. However, this was committed while the defendant was on court bail for offences related to dangerous drugs, I consider this amounted to an aggravating factor and increased the starting point to 2.5 years.

The defendant aged 60 with 39 previous convictions. He committed his first offence when he was 13 and his last conviction was in 2009 of which he was sentenced to 8 months imprisonment and was released on 24 February 2010. Most of the convictions related to theft and possession of dangerous drugs and with one trafficking in dangerous drugs in 2007 of which he was sentenced to 16 months imprisonment. It is apparent that the long conviction history of the defendant was due to his drugs problem.

The defendant is entitled to 1/3 discount for his plea, I do not consider there to be any mitigating factor that called for further deduction. Charge 1 and 2 are concerned the same course of event, I order the sentence of these two charges to run concurrently. Charge 3 is an independent offence, however, taking into account of the totality consideration, I order part of the sentence to run concurrently, making a total of 32 months imprisonment.

Order

Charge 1 sentenced to 14 months

Charge 2 sentenced to 4 months, concurrent with charge 1

Charge 3 sentenced to 20 months, 2 months concurrent with charge 1 and 2, 18 months consecutive, making a total of 32 months imprisonment.