HKSAR v. Lam Kwong Ming

DCCC 797/2017

[2018] HKDC 127

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 797 OF 2017

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REASONS FOR SENTENCE

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1.The defendant admitted trafficking 6.77 grammes of a mixture containing 5.22 grammes of heroin hydrochloride.  This is a case of police stop and search in the street leading to the discovery of drugs on the defendant.

2.On the night of 10 June 2017, patrolling officers stopped the defendant for a search who was acting suspiciously near a rear lane in Anchor Street, Mongkok. The officers found the drugs inside the defendant’s underpants which were put in 40 separate packets.  Also found on him were a mobile phone and 1,000-odd cash.  The estimated street value of the drugs is about $4,700.

3.Under caution, the defendant said that the drugs were for his own consumption. 

4.The defendant, aged 62, a divorcee with no children, is a CSSA recipient of about $4,000 a month.  He has an appalling criminal record: 53 previous convictions.  22 of them are drug-related.  13 out of 22 are trafficking.  His last conviction of trafficking, however, is in 2007, and all the recent convictions over the past decade are possession of drugs.  Counsel for the defendant quite frankly told the court that there is not much he could put forward by way of mitigation except the defendant’s plea of guilty. 

5.There are sentencing guidelines for this type of offence.  For trafficking up to 10 grammes of the drugs, a term of 2 to 5 years is to be considered.  Given the amount of drugs the defendant admitted trafficking, I take 3 and a half years as starting point.  In view of his record, 13 previous trafficking offences, undoubtedly the defendant is a repeat offender.  But for the fact that he had not committed a single offence of trafficking in the past 10 years, the court is not prepared to increase his sentence for this reason on this occasion.

6.Clearly, the defendant is a drug abuser for a long time.  The authorities say that it has to be a significant proportion of the drugs for self-consumption to enable the defendant to have extra discount on sentence.  As far as self‑consumption is concerned, I have clarified it with the defence counsel who told the court that his client would now retract that statement to the police that all the drugs were for his own consumption.  The defendant now says only a small portion was for that purpose.  Given the defence position as it is, the court is not prepared to reduce the starting point any further simply for the fact that the defendant is a habitual drug user. 

7.As far as mitigation is concerned, apart from his guilty plea, there is not anything of substance.  His plea is a timely one, so he is entitled to a full one-third discount; after deducting one-third, the starting point is reduced to 28 months.  And there being no reason for further reduction in sentence, the defendant is therefore sentenced to 28 months’ imprisonment.