HKSAR v. TO CHI WA

DCCC595/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 595 OF 2009

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HKSAR
v.
To Chi-wa (D1)

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Before: H H Judge Tallentire

Date: 26 November 2009 at 9.59 am

Present: Ms Panesar Mahinder, Counsel on fiat, for HKSAR
Mr Mak Kin-ming, instructed by Messrs Littlewoods, for the Defendant

Offence: (1) & (2) Trafficking in a dangerous drug (販運危險藥物)

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Reasons for Sentence

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1. Defendant, you were convicted after trial of two offences of trafficking in dangerous drugs, each contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2. I do not intend to repeat the facts which I dealt with exhaustively in my verdict. Those facts are well known to this court. Sufficeit to say that you admitted unlawfully possessing both quantities of heroin. Charge 1 involved 3.22 grammes of mixture containing2.59 grammes of heroin hydrochloride, and Charge 2, 18.92 grammes of mixture containing 14.6 grammes of heroin hydrochloride. Thetotal amount of pure narcotic embraced by the two charges is 16.75 grammes.

3. You admitted to four previous convictions. One was a breach of community service, which I have not taken into account, but therewere two involving drugs. Initially, as you will recall, I adjourned the case for the preparation of a probation officer’s backgroundreport and, in view of its contents, I then further adjourned for a DATC report not on the basis that I had any intention of makingsuch an order but to see whether or not you were considered to be drug dependent. That report does indeed confirm you are drug dependentand that is of some importance.

4. Mr Mak, on your behalf, entered mitigation. The main thrust of that mitigation was that you are a deep-rooted addict and at leastsome of the dangerous drugs would be used for your own consumption. Mr Mak quite rightly points, and it is confirmed by the probationofficer, to the difficult and disrupted life you have led. Ultimately, you fell in with drug addicted peers and became an addictyourself. He urged leniency on me, asking me to afford you one more chance and send you to DATC.

5. It is true that in DATC, you would receive treatment and guidance. Whilst from a rehabilitative point of view that is attractive,the simple fact is that we are dealing here with a very large amount of heroin indeed, 16 grammes. Whilst accepting the usual tariffis not meant to be a straitjacket, it does translate into approximately 6 years’ imprisonment.

6. I have to say that I deem DATC in these circumstances to be wrong in principle. However, I am prepared to accept that some of thenarcotic would have been used for your own consumption though the amount is very difficult to estimate. I take into account thatyou are a young man, that your record is not of the worst and does not include any previous trafficking offences. However, drugtrafficking is an evil occupation and one that is widespread. In my opinion, only substantial prison sentences are appropriate inthese circumstances.

7. Taking all I have said into account, I have resolved to be as lenient as I possibly can. Taking into account the facts as I havementioned, you will go to prison for 5 years, which is the bottom of the tariff.

(Discussion re clarification of sentence – two charges)

8. Defendant, what in fact has happened is that I neglected to sentence you on the first offence. On that offence, you will go toprison for 9 months, which is concurrent with the 5 years on the 2nd charge. So, your sentence does not change. It is now properlyin place.

Tallentire
District Judge