HKSAR v. Lau Wai Kwong

DCCC 254/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 254 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant has been convicted on his own plea of one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134, namely 11.00 grammes of a mixture containing 9.21 grammes of heroin hydrochloride.

Facts

2.The particulars of the offence are that at around 9.53 p.m. on 27^th December, 2015, police officers were patrolling along Un Chau Street towards Shek Kip Mei Street when they saw the Defendant crossing the pedestrian crossing towards Tai Po Road direction. The Defendant was looking around nervously while he was crossing the road.  Finding him suspicious, PC13009 intercepted the Defendant outside Shop A1, Ground floor, No. 158 Tai Po Road, Sham Shui Po.  During the investigation, the Defendant was seen nervously hiding his left hand in the left pocket of his jacket. Upon search of the Defendant, PC13009 found a piece of wrapped newspaper (P1) and a transparent re-sealable plastic bag with red lining containing a piece of white paper marked ‘35’ (P2) inside the left inner pocket of the Defendant’s grey-blue vest. Inside P1, there were 2 transparent re-sealable plastic bags containing a total of 10 packets consisting of orange plastic wrappings containing a total of 4.89 grammes of a mixture containing 4.10 grammes of heroin hydrochloride. Inside P2, there were 35 packets consisting of green plastic wrappings containing 6.11 grammes of a mixture containing 5.11 grammes of heroin hydrochloride.  The Defendant was arrested and cautioned and brought back to Sham Shui Po Police Station.  In a subsequent video-recorded interview under caution, the Defendant said, inter alia, that he had purchased the dangerous drugs for HK$5,000 from an unknown male aged around 40 years in a park at the junction of Nam Cheong Street and Ki Lung Street.  These were for his own consumption and could last him for about a month. He was unemployed and received Comprehensive Social Security Assistance (CSSA).  The street value of the heroin seized from the Defendant was HK$6,843.

3.When the Defendant was searched upon return to the Sham Shui Po Police Station, HK$128.50 in cash, Renminbi20, a Smartphone, a SIM card and some keys were found on him.

Previous Convictions

4.The Defendant’s criminal record dates back to 1980. He has 16 previous convictions in 8 court appearances including one previous conviction for possession of dangerous drugs in 2002, when he was fined $5,000 and 3 convictions for trafficking in dangerous drugs in one court appearance in 2010,   convictions similar to the present one, when he was sentenced to a total of 3 years’ imprisonment.

Mitigation

5.The Defendant is now aged 66 years.  He is single and lives at the address as shown on the Antecedent Statement. No issue was taken on the contents of the Antecedent Statement.

6.He was born in Hong Kong and has received education up to Form 1 in Hong Kong. At the time of his arrest, the Defendant was unemployed and he said under caution that he received monthly CSSA. He has been a drug addict since he was 22 years old. I was told that part of the dangerous drugs found from the Defendant were for his own consumption.  Defence Counsel submitted that the dangerous drugs referred to as P1 on the summary of facts,  i.e. the 2 transparent re-sealable plastic bags containing a total of 10 packets consisting of orange plastic wrappings containing a total of 4.89 grammes of a mixture containing 4.10 grammes of heroin hydrochloride, were for the Defendant’s own consumption.  Mr. Stephenson for the Prosecution informed the Court that the Department of Justice confirmed that they accepted that these dangerous drugs were for the Defendant’s own consumption.  Defence Counsel submitted that mathematically, the percentage of the dangerous drugs for the Defendant’s own use was 44.5%. Counsel also submitted that the Defendant had bought the dangerous drugs from an unknown male – although the Defendant had provided a description to the police, the police had been unable to locate him.

Sentencing Considerations

7.The Defendant now admits that he was in possession of the drugs in question for trafficking, although in mitigation Counsel for the Defendant submitted that a part would be for his own consumption.  This was confirmed by the Prosecution.

8.The appropriate sentence for trafficking in up to 10 grammes of heroin hydrochloride is from 2 to 5 years’ imprisonment, pursuant to Lau Tak Ming [1990] HKLR 370. The sentence follows the quantity of drugs.  That would put the quantity in the Defendant’s possession for trafficking at the material time at the higher end of that spectrum, being 9.21 grammes of heroin hydrochloride, and would warrant a starting point of 4 years and 6 months (i.e. 54 months) imprisonment.  In HKSAR v. Chow Chun Sang, [2012] 2 HKLRD 1121 the Court of Appeal held at      p.1126:

“ in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant.”

The Court of Appeal did not set down what percentage would be appropriate but held it would depend on the facts of every case.

9.I have taken into account that the Defendant is a drug abuser and that some of those drugs would have been for his own consumption.  There was no direct evidence of sale of any drugs. Nor is there any evidence that the Defendant was involved in premeditated and organized trafficking. I have borne in mind the quantity and packaging of the dangerous drugs in question.  I have borne in mind too that the Defendant was unemployed and living on social assistance. I have also borne in mind the latent risk of the drugs for self-consumption falling into the wrong hands.  Of course, any determination of a percentage must involve an element of speculation and must of itself be an approximate figure.

10.Looking at those features of the case, I shall discount the starting point by 12 months – a discount of just over 22% - to reflect that some of the dangerous drugs were for the Defendant’s own consumption. I have decided that the appropriate starting point for this offence is therefore one of 3 years and 6 months’ (i.e. 42 months) imprisonment.

11.The Defendant has pleaded guilty and he is entitled to a discount of one-third to reflect that.  That is the only mitigation of weight before me.

12.He is therefore sentenced to 2 years and 4 months’ (28 months) imprisonment.