HKSAR v. CHU FEI WAN

DCCC 76/2024

[2025] HKDC 1407

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 76 OF 2024

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved are heroin and midazolam.

Summary of Facts

2.  About 4:36 p.m. on 20 September 2023, PC 27683 (PW1)  saw the defendant sitting alone on a park bench near Lamppost No.6 at Maple Street Playground in Shamshuipo.  He stopped the defendant for enquiry.  Upon search, he found, in the waistband region of the defendant's trousers, 2 resealable plastic bags (respectively E1 and E2).  E1 was found to contain a total of 8 tablets containing 0.10 gramme of midazolam. E2 was found to contain:  (i)  10 foil packets which contained a total of 10 tablets containing 0.13 gramme of midazolam; (ii)  9 packets which contained a total of 1.35 grammes of a mixture containing 0.86 gramme of heroin hydrochloride; and (iii)  9 packets which contained a total of 2.88 grammes of a mixture containing 2.05 grammes of heroin hydrochloride.

3.  PW1 arrested the defendant for "simple possession".  Under caution, he admitted that the drugs found on him were "4 jai" and "lam jai", both were for his own consumption.

4.  In his video recorded interview, the defendant admitted, inter alia, that "lam jai" meant midazolam; and "4 jai", heroin.  The powder inside the packets was heroin.  He consumed both types of drugs.  He purchased the drugs contained in E1 and E2 from a stranger at $3,500 around 3:00 p.m. on that day.  E1 and E2 would last him for 10 odd days.

5.  The defendant now admits that he possessed E1 and E2 for the purpose of unlawful trafficking.

Mitigation & Sentence

6.  The defendant is 64.  He has 8 conviction records, which included 5 "trafficking" offences, 3 "simple possession" offences and 1 "Keeping a divan" offence.  Defence counsel Mr. Iu informed me that the defendant's wife has recently moved to Hong Kong from the mainland.  In mitigation, Mr. Iu submitted that the defendant has been living in poverty for many years.  He is unemployed and receives $7,000 social welfare each month.  He committed the present offence due to financial pressure.

7.  Drug abuse has always been a problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment.  Also, being in financial difficulty (however serious)  is no mitigating factor for committing a crime.

8.  For the purpose of sentencing, I am prepared to disregard the negligible quantity of midazolam.  I will sentence the defendant based on the quantity of heroin.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in heroin (see The Queen v Lau Tak Ming & others [1990] 2 HKLR 370).  For up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment[1].

9.  The defendant trafficked in 2.91 grammes of heroin.  Applying a strict arithmetical approach, the appropriate starting point is 2 years and 10 months.  For ease of calculation, I adopt a starting point of 33 months' imprisonment.  I will increase the starting point to 36 months since the defendant is a repeated offender of "trafficking" offences.  With the timely guilty plea, the sentence is reduced to 24 months. Apart from this, I see no other mitigating factors which warrant any further reduction.  Also, Mr. Iu has confirmed that there is no claim for self-consumption as mitigation.  I sentence the defendant to 24 months' imprisonment.