HKSAR v. Lau Kin Kwan

DCCC 40/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 40 OF 2017

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is heroin.

Summary of Facts

2.About 12:45 a.m. on 20 October 2016, PC 2877 (PW1) and PC 6820 (PW2) were performing road block duties at the junction between Dundas Street and Canton Road in Mongkok.

3.PW2 stopped a taxi and found the defendant in the rear passenger seat.  PW1 requested him to alight from the taxi.  Upon search, PW1 found in the defendant's luggage a black plastic bag containing a transparent resealable plastic bag which contained 5 pieces of solid (subsequently confirmed to be 10 grammes of a mixture containing 7.81 grammes of heroin hydrochloride).  The defendant told PW2 that the substance was "white powder" and asked PW2 to let him go.  PW2 arrested him for "simple possession".  Under caution, the defendant admitted that he bought the "white powder" at a playground for his own consumption.

4.In his cautioned interview, the defendant admitted in details how and when he purchased the heroin from an unknown male at the Sam Pei Square Playground in Tsuen Wan.  He claimed that in the early hours on 20 October 2016, he was taking a taxi from his home in Kwai Chung Estate to Mongkok to find a prostitute.

5.The defendant's residence was searched and nothing suspicious or illegal was found.

6.The defendant now admits that he possessed the heroin found in his luggage for the purpose of unlawful trafficking.

Mitigation & Sentence

7.The defendant is 51 and has 18 conviction records, which included 3 "Trafficking" offences and 9 "simple possession" offences.  Defence solicitor Mr. TONG informed me that the defendant is unemployed and relies on social welfare.  He resides with his aged parents in a public housing unit in Kwai Chung. 

8.In mitigation, Mr. TONG submitted that the defendant was cooperative with the Police and made frank admissions.  Mr. TONG further submitted that half of the heroin found was intended for the defendant's self-consumption (at the rate of 0.5 gramme per day).  Mr. WU for the prosecution objected to the self-consumption claim made by the defendant.

9.A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.

10.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 up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment.  The defendant trafficked in 7.81 grammes, the appropriate starting point is 4.5 years.

11.Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[1]. The defendant's conviction records tend to suggest that he might be a drug user.  I am also aware that at the scene, he claimed under caution that he purchased the heroin for self-consumption.  On the other hand, according to the defendant, he bought the drug in Tsuen Wan earlier in the same evening.  Then after midnight, he took a taxi from home to Mongkok to find a prostitute. 

12.If the defendant was telling the truth, why did he not leave the drug or whatever quantity he intended for self-consumption at home but decided to bring the entire bag with him in his luggage instead?  It is obvious that he was taking the drug from home to somewhere (at least he was not on his way home when he was stopped).  Hence, I reject the defendant's claim that any quantity of the heroin found was intended for self-consumption. I would not grant him any discount in this regard despite the possibility that he was a drug user.

13.A one-third discount is given for the guilty plea, reducing the sentence to 3 years.  Apart from this, I see no other mitigating factors which warrant any further reduction.   I sentence the defendant to 3 years' imprisonment.