HKSAR v. Lau Chi Hung

DCCC 999/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 999 OF 2016

____________

____________

REASONS FOR SENTENCE

The defendant pleaded guilty to 1 charge of "Trafficking in a dangerous drug" (Charge 1); 1 charge of "Possession of a dangerous drug" (Charge 2); and 1 charge of "Resisting police officers in the due execution of their duties" (Charge 3). The dangerous drugs involved in Charges 1 and 2 are respectively heroin and "ICE".

Summary of Facts

2.About 9:50 p.m. on 23 July 2016, SPC 33800 (PW1) stopped the defendant for enquiry outside No.107 Sai Yee Street, Kowloon.  During the enquiry, the defendant took out a mobile phone, a wallet and a red toy car (E1) from his pocket and handed them over to PW1.

3.PW1 saw a bulge in the defendant's front trouser pocket.  He then reached into the pocket and found a resealable plastic bag which contained 27.9 grammes of a mixture containing 21.6 grammes of heroin hydrochloride (E2).  PW1 asked the defendant what E2 was, but he did not reply.  PW1 then declared arrest on the defendant.

4.Suddenly, the defendant turned around and tried to leave.  PW1 grabbed the defendant's outer garment and wrapped his arms around the defendant from behind.  The defendant continued to struggle.  PW1 and    PC 21944 (PW2) tried to subdue him.  During the struggle, the defendant bit PW1's left elbow and pulled PW2's shoulder board.  As a result, PW1's glasses were damaged and PW2's left shoulder board became detached.  PW1 was sent to the hospital for treatment.  He was found to have abrasion on his neck and both elbows.

5.PW2 examined E1 and found a resealable plastic bag which contained 0.71 gramme of a crystalline solid containing 0.69 gramme of methamphetamine hydrochloride (E3) inside its battery compartment.  Under caution, the defendant admitted that E3 was for self-consumption.

6.In his video recorded interview, the defendant admitted that he was helping an unknown male to carry E2 to the public toilet situated at Sai Yee Street for a reward of $500.  E3 was given to him by the unknown male as a reward for carrying E2.  The defendant then placed E3 inside E1.  He also admitted that he had pushed a police officer and bitten another in order to escape.

Mitigation & Sentence

7.The defendant is 29 and single.  He has 4 conviction records, which included 2 "simple possession" offences.  Defence solicitor Mr. AU informed me that prior to the present offences, the defendant was a transportation worker earning about $6,000 per month.  He resides with his father and 2 brothers.

8.In mitigation, Mr. AU submitted that the defendant committed the "trafficking" offence because he was in need of money.  Mr. AU explained that the defendant's role was only a courier; the cash he had with him was his salary.  Regarding Charge 3, the defendant struggled with the police officers out of panic.  Fortunately, PW1 suffered only minor injuries.  Mr. AU also submitted that the defendant has all along been cooperative after being arrested.  A letter written by him was placed before me; its contents are duly noted.

9.Drug abuse has always been a problem in our society, and the HKSAR is determined to fight the battle against drugs in all aspects.  A clear message must be conveyed to the general public that "drug trafficking" is a dead serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders, so that there is a deterrent effect.

10.As a judge, I see day in and day out persons in my court being charged with "drug trafficking". Many of them were just like the defendant – persons used by others as "couriers".  When people realize that the court would not treat drug traffickers lightly, there would be, hopefully, fewer willing "couriers"; thus making it difficult for criminals to exploit people with financial needs or other vulnerabilities.  Undoubtedly, most drug traffickers are "used" by bad persons (or so they claim).  That is the reason why we need to make people think twice before they agree to be "used".

11.For Charge 1, the Court of Appeal has laid down clear sentencing guidelines for trafficking in heroin (see The Queen v LAU Tak-ming & others [1990] 2 HKLR 370).  For 10 to 50 grammes, the sentence ranges from 5 to 8 years' imprisonment.  The defendant trafficked in 21.6 grammes of heroin, the appropriate starting point is 69 months.  With the guilty plea, the sentence is reduced to 46 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.   I sentence the defendant to 46 months' imprisonment.

12.For Charge 2, it involves 0.69 gramme of ICE.  Based on its quantity and the defendant's conviction records, I accept that E3 was for his own consumption and that there is hardly any latent risk of trafficking. I adopt a starting point of 6 months' imprisonment.  With the guilty plea, I sentence the defendant to 4 months' imprisonment.

13.For Charge 3, struggling with PWs 1 and 2 was absolutely unnecessary; it only made the situation worse.  The court has a duty to safeguard the personal safety and dignity of law enforcement officers.  I adopt a starting point of 6 months' imprisonment.  With the guilty plea, I sentence the defendant to 4 months' imprisonment.

14.Having considered the totality principle, I order the sentences to run in the following manner :-

(i) Charges 1 and 2 concurrent; and

(ii) 2 months in Charge 3 consecutive to Charges 1 and 2.

Thus, arriving at a total prison term of 48 months.