HKSAR v. KWOK WING KAN

DCCC 179/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 179 of 2013

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(l)(a) and (3) of the Dangerous Drugs Ordinance.

2.  You admitted that on 8 January 2013, at Johnston Road near O’Brien Road in Wanchai in Hong Kong you unlawfully trafficked in 8.67 grammes of a mixture containing 7.49 grammes of heroin hydrochloride.

3.  On the day in question at about 6 am police officers saw you acting furtively at that location.  You were then stopped by the officers and, upon search your person, found in your right front coat pocket were 61 pellets of the drugs in plastic wrappings. 

4.  Under caution you said that the pellets were Number 4 and for your own consumption.  You later admitted that Number 4 was Number 4 heroin.

5.  Found upon you was $2,681.80.  The average street value for the heroin hydrochloride found in your possession had an estimated value of $6,119.

6.  You are 52 years of age, have six previous convictions, of which four are drug-related.  You have two similar offences for trafficking in dangerous drugs which you were sentenced to 7½ years’ imprisonment in 1994 and 4 years in the year of 2000.  The other two are for possession of dangerous drugs, and your last release date from prison was on 30 May 2005.

7.  Miss Vera Lam has mitigated fully and thoroughly on your behalf today.  I have taken into account all that she has had to say.  She has informed me that your drug problems have led to your consistent transgression of the law.  Prior to your arrest you were a cleaner earning $1,800 and also living on low income Social Security. 

8.  She has informed me that some of the drug found in your possession was for your self-consumption.  You have estimated the approximate amount to be about 1.4 grammes of mixture for your own self-consumption.  That, of course, does not include the purity, but Mr Felix Tam and Miss Lam have agreed that the proportion to the mixture and the purity in the charge should be taken and that would mean approximately 1.2 grammes of purity you say would be for your own self-consumption.  That would leave a purity for trafficking at least on the charge at 6.29 grammes of heroin hydrochloride. 

9.  In respect of the 1.2 grammes you say were for your self-consumption, it is accepted by Miss Lam that the self-consumption element carries the aggravation of the latent risk of trafficking factor.

10.  The facts in this case obviously show a very, very strong inference that you were trafficking in these drugs.  You were out and about in the morning at 6 am, acting furtively and had with you numerous individually wrapped packets of the drugs, that is 61 pellets.  You had cash upon you of $2,681 which was more than your earnings of $1,800 a month, and the value of the drugs was substantially more than your income, which was almost five times that at $6,000-odd. Therefore in sentencing you I take into account these matters.

11.  You are a self-confessed trafficker and you say that part of your haul was for self-consumption.  In my view, that is a very small part which was for your self-consumption, and in any event, the part that was for your self-consumption, in my view, carries a sentence which must take into account the aggravated latent risk factor.

12.  The case of HKSAR v Wong Suet Hau, Ice, CACC 366/2000, has regard to traffickers mitigating that part of the haul was for their own self-consumption and I have taken into account the factors laid down by the Court of Appeal there.

13.  Had the whole amount of 7.49 grammes of heroin hydrochloride been taken as an amount for trafficking in dangerous drugs, the starting point for that after trial would have been a sentence of about 50 months’ imprisonment, and if the amount of 6.29 grammes for trafficking is taken into account as an amount for trafficking, the starting point after trial would be 45 months’ imprisonment. 

14.  Of course, I must also take into account the fact that you say that 1.2 grammes was for your own self-consumption and I must sentence you on the basis of possession of that amount. 

15.  Taking into consideration that amount for possession of drugs would usually attract a sentence of about 18 months’ imprisonment after trial, and taking into account the latent risk factor as an aggravating factor, that would be increased to about 27 months.

16.  In any event, looking at the sentence as a global sentence in these mixed cases, as in your case, the difference in sentence is very slight given those factors.

17.  For the purposes of this sentence therefore, I take a total starting point of 48 months or 4 years’ imprisonment had I convicted you after trial.

18.  Giving you full credit for your plea of guilty, I reduce that term to one of 2 years and 8 months’ imprisonment, to which you shall be so sentenced.