HKSAR v. Chan Man Lung

DCCC 559/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 559 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of trafficking in a dangerous drug. He has accepted the facts of the case that are contained in the Summary of Facts. These show that the defendant was subjected to a stop-and-search on 2 April 2016 in Lai Chi Kok Road. A packet of heroin was found inside his underwear. The packet consisted of 27.9 grammes of a mixture which contained 23.1 grammes of heroin hydrochloride.

2.The defendant made a video-recorded interview subsequently.  In that, he said he had met a male called Ah Tong one month ago.  On the date of the offence, Ah Tong had asked him whether he was in need of money, and Ah Tong had passed a packet of drugs to him at a public toilet in Maple Street and asked him to deliver that same packet to a public toilet in Ap Liu Street for a reward of $500.  The drugs themselves were valued at $17,094.  

3.The defendant admits he was in possession of these drugs for the purpose of unlawful trafficking.  By his admission, he would clearly be dealing in the drugs by acting as a courier for them.

4.The defendant’s antecedents have been admitted as well.  He is aged 41 and has a criminal record dating back to 1991 which shows that he has some 15 previous appearances in court.  The defendant has been a consumer of drugs since at least 1995 when he was convicted of possession of drugs.  For drug-related offences of possession of a dangerous drug, he has been fined, sentenced to probation and drug addiction treatment centre and finally imprisonment.

5.The defendant has two offences of trafficking in a dangerous drug.  These were committed in 2004, and he received a sentence on one of 24 months and on the second offence 40 months, 36 of which were to run consecutive to the first sentence.  Since then, the defendant has committed other offences but no offences in relation to drugs.  They are mainly offences of dishonesty involving theft to which he has been sentenced to imprisonment. At the time of his offence, the defendant was a cleaning worker.

6.In mitigation, I am told the defendant is remorseful and asks for a lenient sentence.  He has been unwell in prison but has seen a doctor.  He has some, I am told, psychiatric disturbance but apparently is under treatment for that. 

7.As far as sentence is concerned, the starting point for sentence in relation to offences involving the trafficking in heroin hydrochloride is governed by guideline sentencing.  The relevant sentencing band for this quantity of drug is between 10 to 50 grammes of the narcotic, and sentences for this quantity can range between 5 to 8 years’ imprisonment.  In this case, I am concerned with the quantity of narcotic which is 23.1 grammes which would put it towards the lower end of the sentencing band. 

8.As far as the mitigation is concerned, of course it is of relevance the defendant has a previous conviction for this offence in 2004.  That can be an aggravating factor and can lead to an increase in starting point for sentencing.  However, in this case though, it is urged upon me that these offences were committed some 12 years ago and it would perhaps be unfair on the defendant to aggravate this sentence, having regard to historic offences.  I consider that submission to be well-founded.

9.And as far as mitigating factors are concerned, there is the defendant’s plea of guilty.  It has not been urged upon me the defendant would have consumed any part of this drug.  The defendant’s admission of fact is that he was in the process of transporting the drugs to another person.  So it would appear the only operative mitigating factor is the defendant’s plea of guilty, for which he is entitled to a one-third discount from the starting point for sentence. 

10.Clearly, the starting point for sentence must be in excess of 5 years’ imprisonment because the quantity of narcotic is larger than the lowest point on the sentencing tariff guideline.  I shall adopt a starting point for this sentence of 5 and a half years’ imprisonment which is 66 months’ imprisonment. 

11.As I have earlier said, this sentence should not be subject to any further aggravating factors.  It will be subject to the mitigating factor for the defendant’s plea of guilty.  That reduces the sentence by one-third which by my calculation is a reduction of 22 months to a final sentence of 44 months’ imprisonment.