HKSAR v. CHIK KA FAI

DCCC783/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 783 OF 2011

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to two charges before this court. The 1st charge is trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. The 2nd charge is a charge of resisting a police officer in the execution of his duty, contrary to section 63 of the Police Force Ordinance. Both offences were committed on 29 April 2011 outside No. 256 Sai Yeung Choi Street South, Mongkok.

2.  On 29 April, police officers were mounting an anti-dangerous drug operation at Sai Yeung Choi Street South.  At about 11.18 pm, they saw you acting furtively and intercepted you.  A police officer revealed his police identity.  At that time you were holding in your hand a plastic bag within which was a smaller plastic bag of drugs in the amount of 13.89 grammes of a mixture containing 10.45 grammes of heroin hydrochloride.

3.  The police officer arrested you for trafficking in a dangerous drug.  At that moment, you suddenly used both of your hands to push the officer’s hands away. The officer immediately held your shoulder and issued you with a verbal warning to stop resisting arrest.  However, you continued to struggle and tried to flee.  That struggle lasted for about 10 seconds, whereupon you lost your balance and fell on the ground.  The officer then pressed you on the ground.  Other police officers came and eventually subdued you.  You were then also arrested for resisting arrest.

4.  You incurred some slight injuries on your lip and face as a result of the struggle.

5.  It is an admitted fact that the drugs in question amounted to a street value of $9,070.

6.  I am informed by your counsel Mr Chau Hing-ping in mitigation today that you had received these drugs from a man called Ah Woo and were to deliver them to a person called Ah Wah.  As a result, you have admitted to trafficking in dangerous drugs.

7.  I have taken into account the mitigation put forward by your counsel Mr Chau in considering the appropriate sentence to be passed upon you.

8.  You are aged 54 and have four previous convictions.  You have one similar related drugs which is for an offence of possession of dangerous drugs in 2001.  For that offence you were fined $2,000.  You have been a drug addict for many years.  You were unemployed and depended on CSSA of $1,800 a month. 

9.  At the material time you lived with your wife in Sai Yeung Choi Street.  As a result of your meagre income from CSSA and the fact that you spent about $100 a day for drugs, you could not get enough money to satisfy your drug habit.  For that reason you agreed to take the drugs from Ah Woo to give to Ah Wah.  Mr Chau has informed me that the reward for that was that you would be given about 2 grammes from the drugs you were to deliver. 

10.  Mr Chau has quite rightly said the tariffs for trafficking in heroin are clearly laid down and he asks me to give some deduction for 2 grammes from the starting point.

11.  The prosecution do not accept that 2 grammes were for your own consumption.  I accept the submissions made by Miss Lilly Wong for the Prosecution.  At the time you were interviewed you said you were unaware of the quantity of the drugs.  The drugs were further contained all in one single small bag.  It is difficult to see how you could have given 2 grammes to yourself when you were about to deliver the drugs to Ah Wah.  Furthermore, I accept it would have been quite a different scenario if the 2 grammes of drugs were in another separate bag, this might then be acceptable that the 2 grammes of drugs were as reward for the delivery and to satisfy your consumption.  In the circumstances of this particular case there would be little or no deduction at all on the quantity of drugs to which you have pleaded guilty to trafficking given the above matters. 

12.  In any event, I do not accept that there was 2 grammes deduction for your own consumption for the reasons stated above and also because that quantity would be almost 20 per cent of the total amount of drugs, which had a value of about $1,306. 

13.  In the circumstances of this case I shall take the lowest starting point as possible in view of the quantity of drugs that you had trafficked in.

14.  Defendant, you trafficked in 10.45 grammes of heroin hydrochloride.  Following the guidelines in Lau Tak Ming, I take a starting point of 5 years’ imprisonment.  However, giving you full credit for your plea of guilty, I deduct that term by one-third and sentence you to 3 years and 4 months’ imprisonment.

15.  In respect of the resisting arrest charge, the officer was not injured and the resisting was not of too serious a nature.  In those circumstances, I sentence you to 14 days’ imprisonment.

16.  Taking into account the principle of totality, I consider that this term should run concurrent to the trafficking in dangerous drugs term and therefore the total term is 3 years 4 months’ imprisonment.