HKSAR v. Lee Chi Kin

DCCC 41/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 41 OF 2016

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REASONS FOR SENTENCE

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INTRODUCTION

1.On 26 February 2016, the defendant pleaded guilty to and was accordingly convicted of two charges of trafficking in a dangerous drug, laid against him under section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

FACTS

2.On the evening of 28 October 2015, two police officers observed that the defendant acted furtively in a private vehicle at Shak Pai Tau Path, Tuen Mun.  They conducted an enquiry on him and found inside the vehicle (i) one plastic bag and 13 plastic packets containing what was subsequently determined to be a total of 6.69 grammes of a mixture containing 5.2 grammes of heroin hydrochloride, and (ii) two foil packets containing 11 tablets which contained 0.14 grammes of midazolem. During the police enquiry, the defendant took out from his underpants and surrendered to the police (i) one plastic bag and five packets containing a total of 2.54 grammes of a mixture containing 2.01 grammes of heroin hydrochloride, and (ii) two plastic bags and 51 packets containing a total of 8.75 grammes of a mixture containing 6.82 grammes of heroin hydrochloride.   In total, the police seized from the defendant 17.98 grammes of a mixture containing 14.03 grammes of heroin hydrochloride and 11 tablets containing 0.14 gramme of midazolem.  In addition, the defendant was found to have in his possession $7,153.9 cash.  Under caution, he said he had purchased the dangerous drugs from a drug addict in Yuen Long and would have them sold near Chelsea Height in Tuen Mun. (Charge 1)

3.On the early morning of 29 October 2015, the police conducted a house search at the defendant’s residence at Flat B, 4^th floor, No.215, Shui Tau Tsuen, Kam Tin, New Territories, and found in his bedroom two foil packets containing 14 tablets which contained 0.18 gramme of midazolem.  Under caution, he admitted having purchased the midazolem in Yuen Long for sale. (Charge 2) 

4.In a subsequent video recorded interview, the defendant admitted he had bought all the dangerous drugs seized by the police for sale in Tuen Mun, that he had been running this drug-selling business for about a week, making around $800 to $1,000 a day, and that of the cash seized from him at the time of his arrest, around $6,000 represented his capital for purchasing further dangerous drugs for sale.

5.The estimated street value of the dangerous drugs seizure in this case was about $14,681.

MITIGATION

6.The defendant was born in Hong Kong in July 1985 and is now 30 years old.  He has received education up to secondary school level and has had a clear record prior to his current convictions.  He works as a casual delivery worker and lives with his mother and his girlfriend. 

7.Miss Gina Chong, solicitor appearing for the defendant, submits that the defendant is the sole breadwinner, singlehandedly supporting his mother (aged 60) who has ceased working due to chronic pain caused by her job as a cleaning lady.  The defendant committed the subject offences, submitted Miss Chong, because of increased financial burden in having to provide for the mother’s changed accommodation, who might now have to forfeit the current lease and then move to live in a smaller flat.  Various mitigation letters have been submitted to court, showing that the defendant has the support of his mother, step-brothers, and previous employer.  Miss Chong asks the court not to place much weight on the seizure of the midazolem which, says Miss Chong, is of a negligible amount, compared with the heroin concerned.  Miss Chong stresses that the defendant has been brought up without a father figure to guide him and that he had to fend for himself and the family since leaving school, and asks the court to pass a lenient sentence on him.

REASONS FOR SENTENCE

8.Trafficking in a dangerous drug is a serious offence, the statutory maximum sentence for which is one of life imprisonment.  In R v Lau Tak-ming and ors[1], the Court of Appeal held that the appropriate sentence after trial for trafficking in 10 to 50 grammes of heroin should be five to eight years’ imprisonment; this represents in any view a stringent sentencing policy, showing the court’s determination to combat trafficking in this kind of dangerous drug. 

9.In the present case, in view of the quantity of heroin concerned, a starting point in excess of five years’ imprisonment is called for.  As Miss Chong has frankly submitted, the major mitigation in her client’s case comes from his guilty plea.  While it is true that the defendant has rendered to the police his full co-operation upon his arrest, not a significant amount of weight, in the court’s view, can be attached to that circumstance in view of the obvious preponderance of evidence against him.  However, the midazolem seized in this case, as Miss Chong has correctly pointed out, pales into insignificance in terms of quantity and when compared with the potency of heroin and the stiff sentencing regime implemented in respect of that dangerous drug. 

10.The defendant is now 30 years old and has had a clear record before the subject offences.  In all the circumstances, the appropriate starting points for the first and second charges are one of five years’ imprisonment and three months’ imprisonment, respectively.  The defendant is entitled to one-third discount for his guilty pleas; the sentences in respect of the two charges are accordingly reduced to 40 months’ imprisonment and two months’ imprisonment.

11.Trafficking in two kinds of dangerous drugs is obviously more serious than trafficking in one.  It is therefore ordered that one month of the sentence in the second charge be served consecutively to the 40 months’ imprisonment in respect of the first charge, making a final sentence of 41 months’ imprisonment.  Little in the defendant’s background and the circumstances of the offences would warrant any further reduction in sentence.

CONCLUSION

12.For the offences of which he stands convicted, the defendant is sentenced to 41 months’ imprisonment.