HKSAR v. Sin Ho Pang

DCCC 1110/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1110 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of trafficking in a dangerous drug. Particulars of that charge are that on 3 October 2016, in Shek Kip Mei Street, he unlawfully trafficked in heroin, namely, 25.2 grammes of a mixture containing 6.26 grammes of heroin hydrochloride.

2.The facts of this case are very straightforward.  Police officers on that day at about 8 pm saw the defendant walking in the street.  He looked suspicious and appeared nervous which made the police officers stop him.  Their suspicion was very accurate and when they searched him, they found inside his waist bag 150 pellets containing the heroin of this charge.  They also found cash of over $6,500.  At a subsequent home search, they found nothing suspicious.

3.Under arrest at the scene, he remained silent. At the station, in two subsequent video-recorded interviews, he said the following.  In the first, he said he paid a woman called Kitty on that evening $5,800 for that quantity of heroin.  It was for his own consumption.  In the second video-recorded interview not long after the first, he said he had actually paid Kitty $15,000. 

4.It is agreed in the facts that the street value of the heroin was about $21,400.

5.In mitigation, he said he did pay Kitty 5,800 but she owed him $10,000.  So he took the heroin in view of money owed. Looking at the background of the defendant, I have little confidence in the truth of that mitigation.

6.The defendant is 64 years old.  He is divorced and has no children from that marriage.  He does live with his 94‑year‑old mother alone.  He deals in second-hand electrical appliances and mobile phones and on a daily basis can earn between four to five hundred dollars. 

7.His criminal record is very long.  He has 69 convictions obtained over 56 court appearances.  43 of those convictions are for possession of dangerous drugs, 9 for trafficking in dangerous drugs.  I have no doubt he has been a drug addict for a very long time.  He has been to drug addiction treatment centre on four separate occasions.  In fact, part of the mitigation put forward is that some of the heroin in this case was for his own consumption.  The prosecution do not challenge that aspect of his mitigation. Judging from his criminal record, I am satisfied he is a drug addict and therefore it is possible some of the drugs would have been for his own consumption.  Other than that, his best mitigation is his plea of guilty.

8.The Court of Appeal has said that when some of the drugs can be said to be for a defendant’s own consumption, a discount of between 10 to 25 per cent could be applicable depending on the circumstances of each case.  The authority of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 is an authority where the Court of Appeal gives such a range of discounts as being possible to consider. Circumstances of each case affecting the discount would depend on factors such as the defendant’s background, the criminal record of the defendant, the nature of the drugs in the case and the proportion of dangerous drugs intended for sale or financial benefit.  There is always the latent-risk factor to bear in mind.

9.Everything that can be said on behalf of the defendant has been said.  For trafficking heroin, there is authority and guideline.  I refer myself to the R v Lau Tak Ming & Others [1990] 2 HKLR 370.  The Court of Appeal there says that where between 0 to 10 grammes of heroin is trafficked, a starting point of between 2 to 5 years would be appropriate.  Mathematically speaking, 6.25 grammes would attract a starting point of 3 years and 10 to 11 months. 

10.I have considered the facts of the case, the quantity and nature of the drug, the defendant’s appalling criminal record, mitigation, age and plea today. 

11.For this charge, I will take a starting point of 3 years and 9 months.  I reduce that starting point by 9 months which is 20 per cent of the starting point.  This reflects the portion of drugs that would have been for self-consumption.  That reduces the starting point to one of 3 years.  The defendant has pleaded guilty and for that plea, he is entitled to a discount of one-third from that starting point. After that discount is applied, for this offence, the defendant is sentenced to 2 years’ imprisonment.  Understand that sentence?

DEFENDANT: Yes.