HKSAR v. Lau Wing Sang

DCCC 12/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 12 OF 2017

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REASONS FOR SENTENCE

1.Lau Wing Sang you have pleaded guilty to one charge of trafficking in 8.67 grammes of a mixture containing 6.91 grammes of heroin, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.In summary at about 2000 hours on 4 October last year you were intercepted by the police as you were about to enter Flat A, 3/Floor, Kwong Ah Building, 15-17 Argyle Street, Mongkok.  PC 18423 found from the left pocket of your shorts one re-sealable transparent plastic bag inside which was a total of twenty-eight packets containing the heroin. 

3.Under caution and in a subsequent video interview you admitted that some of the heroin was for self-consumption and some for sale. 

Mitigation

4.In passing sentence, I have carefully considered everything said on your behalf by Mr Iu, as particularised in his very helpful written submission.

Starting point

5.In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years imprisonment[2].    

6.I am satisfied the proper starting point after trial for 6.91 grammes of heroin, based on quantity alone, is 4 years imprisonment.  

Own use

7.On average the twenty red coloured packets each contained 0.1925 gramme of heroin whereas the eight white coloured packets each contained 0.3825 gramme of heroin.  You claim that your daily consumption was three red packets, which is just over half a gramme of heroin[3].

8.The prosecution accept part of the drugs may have been for your own consumption.  Taking into account on arrest you admitted part of the drugs were for your own use; you have previous convictions for possession of drugs and have been sentenced to a Drug Addiction Treatment Centre (albeit over 10 years ago), I am prepared to accept that part of the heroin was for your own consumption.  

9.In deciding how much weight should be attached to this fact I have considered the decision in HKSAR v. Wong Suet Hau[4], in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang[5] and HKSAR v Cheuk Kin Man[6], cited by Mr Iu.

10.In Chow Chun Sang the Court of Appeal said that where all or part of the drugs were intended for own consumption the discount, depending on the circumstances, should fall somewhere between 10 and 25% of the basic starting point.  The Court of Appeal have subsequently explained that the 10-25% discount only applies where the court is satisfied that a significant portion of drugs is for own consumption[7].

11.Apart from informing the court of your daily consumption, in submitting a significant portion of the heroin was for your own use Mr Iu does not seek to try quantify how much was for your own use and how much was for sale[8].  Mr Iu explains that you are unable to say how much was for sale as this depended on how much you actually consumed.     

12.Taking into account that you were returning home; you are a long time drug addict; and you told the police part was for sale, I am prepared to accept, without quantifying, that some of the red packets amounting to a significant portion, were for your own use.

13.Taking into account that there was a total of twenty-eight packets of heroin; you were unemployed at the time having been released from prison less than six months earlier[9]; possession of drugs carries a sentence in any event; and the latent risk factor, I am satisfied the starting point should be reduced by 6 months to one of 3 years and 6 months imprisonment, which is equivalent to a discount of 12.5%. 

Aggravating feature

14.You have appeared in court on 24 occasions, amassing a total of 27 convictions, 4 of which are for offences relating to dangerous drugs.  Although you have a bad record and can be regarded as a persistent offender, in particular for offences of pickpocketing, for which you were last released from prison in March 2016, this being your first conviction for trafficking in drugs, I do not increase the starting point by reason of your persistent offending.  

15.Giving you full credit for your plea of guilty you are convicted and sentenced to 2 years and 4 months imprisonment.