HKSAR v. YEUNG WAI YEUNG

DCCC 890/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 890 OF 2016

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REASONS FOR SENTENCE

1.  The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is heroin.

Summary of Facts

2.  About 8:50 p.m. on 26 July 2016, PC 12068 and other police officers stopped the defendant for enquiry outside Ground Floor, Ching On House, Tsz Ching Estate, Tsz Wan Shan.

3.  Upon search, the following items on were found in the left front pocket of the defendant's jacket :-

(i) 1 resealable plastic bag containing 40 white packets which contained a total of 9.81 grammes of a mixture containing 7.73 grammes of heroin hydrochloride; and

(ii) 1 resealable plastic bag containing 24 red packets which contained a total of 4.25 grammes of a mixture containing 3.34 grammes of heroin hydrochloride.

4.  Under caution, the defendant admitted that he was instructed by someone named Ah Chung to collect the 2 bags of heroin from Kwun Tong and then deliver them to someone in order to earn some money. In his video recorded interview, the defendant revealed more details about how he met Ah Chung and what he was supposed to do.  He claimed that he would receive $500 upon successful delivery of the drug.

Mitigation & Sentence

5.  The defendant is now 49 and has 13 conviction records, which include 1 "simple possession" offence (dating back to 1996).  Defence solicitor Mr. LAM informed me that the defendant is separated and resides alone.  At the time of his arrest, the defendant was unemployed and relied on social welfare.

6.  In mitigation, Mr. LAM submitted that the defendant committed the present offence due to financial need.  He wanted to earn some quick money to buy some tonic food for his aged mother, who was going to have surgery in September 2016.  Mr. LAM further submitted that the defendant was merely a courier and that his expected reward was $500. Furthermore, he was cooperative with the Police and made frank admissions upon arrest.

7.  Drug abuse has always been a problem in our society, and the HKSAR is determined to fight the battle against drugs in all aspects (from education, crime detection to recovery of proceeds of drug trafficking).  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 even for fresh offenders, so that there is a deterrent effect.

8.  As a judge, I see day in and day out persons in my court being charged with "drug trafficking".  Many of them were just like the defendant – persons used by others as "couriers".  When people realize that the court would not treat drug traffickers lightly, there would be, hopefully, fewer willing "couriers"; thus making it difficult for criminals to exploit people with financial needs or other vulnerabilities.  Undoubtedly, most drug traffickers are "used" by bad persons (or so they claim).  That is the reason why we need to make people think twice before they agree to be "used".

9.  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 10 to 50 grammes, the sentence ranges from 5 to 8 years' imprisonment.  The defendant trafficked in 11.07 grammes of heroin, the appropriate starting point is 5 years.  A one-third discount is given for the guilty plea, reducing the sentence to 40 months. Apart from this, I see no other mitigating factors which warrant any further reduction.   I sentence the defendant to 40 months' imprisonment.

10.  The defendant is in breach of a suspended sentence of 5 months' imprisonment in TMCC 2984/2015 for 2 theft-related offences.  Since the offence in the present case is of a different nature, I would not activate the suspended sentence.