HKSAR v. Lee Tseung Nang

DCCC 596/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 596 OF 2017

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of trafficking in a dangerous drug. Particulars are that he, on 7^th April 2017, unlawfully trafficked in a mixture containing 6.34g of heroin hydrochloride outside Mei Choi House of Shek Kip Mei Estate.

Summary of facts

2.At around 8:22pm on the charge date, the defendant was stopped and searched by anti-narcotics Police officers who were patrolling in plainclothes.

3.Upon search, two transparent re-sealable plastic bags were found wrapped inside a piece of tissue that was inside the defendant’s left trousers pocket.

4.Inside each of the two plastic bags were 20 packets in plastic wrappings. The 40 packets contained substances that the officers believed to be dangerous drugs.

5.The defendant was arrested. Under caution, he claimed that a young man gave him $500 and told him to retrieve some “no.4” from the flowerbed and to bring it to him.

6.At the time of arrest, the defendant had cash of $1,431 on him. He did not have any credit cards, octopus cards or mobile phones.

7.At a later video recorded interview, the defendant explained that he was to take the “no.4” from the flowerbed outside the front entrance of a secondary school on Nam Cheong Street, and to leave them at the flowerbed near block 21 of Shek Kip Mei Estate. The defendant knew that “no.4” meant heroin. He was intercepted while on his way to block 21.

8.The defendant has been a heroin addict for over 25 years. He would spend about $200 on heroin daily. The defendant relies on CSSA payment of about $3,800 per month. He has no fixed abode and would usually sleep under the Tung Chau Street flyover or in Tung Chau Street Park. He claimed that the $1,431 found on him was unrelated to this offence.

9.The substances inside the 40 packets were later analysed by Government Chemists and confirmed to contain a total of 9.21g of mixture, which contained 6.34g of heroin hydrochloride.

Previous convictions

10.The defendant has a total of 4 previous convictions, 3 of them were in 2007. The first one was for attempted theft when he was sentenced to 10 days’ imprisonment. The second one was for possession of a dangerous drug in May 2007 when he was fined $1,000. The third one was for criminal damage in December the same year. For this, he was sentenced to the DATC, suggesting that he was a drug addict at the time.

11.The next and last conviction was over 4 years ago, when he was convicted for theft and sentenced to 1 month’s imprisonment on 11^th January 2013.

Mitigation

12.The defendant is 54. He was educated up to primary level. He was unemployed at the time of arrest.

13.Mr Lok for the defendant referred to the cases of R v Lau Tak Ming, CACC 230/1989 for the sentencing guidelines and the case of HKSAR v Lam Shui Tan, CACC 85/2017 where for 7.5g of heroin hydrochloride, a sentence of 32 months’ imprisonment after plea was upheld.

14.It must be pointed out that in Lam Shui Tan, the applicant had 19 previous convictions, with one similar conviction for trafficking in dangerous drugs. It is not apparent in the judgment whether the learned Deputy District Judge took the previous records as an aggravating factor or not. The case, therefore, does not render too much assistance for sentencing in our present case.

15.Mr Lok also mentioned that it was the defendant’s intention to use the $500 reward to buy some of the dangerous drugs that was found on him. I inquired with Mr Lok if he is seeking a discount based on self-consumption. Mr Lok, very fairly, indicated that $500 of the $6,566.73 worth of drugs (7.6%) found on the defendant is nowhere near a “significant proportion”[1] of the drugs, and he confirmed that the defendant is not seeking a discount on that basis.

Sentencing Guidelines

16.According to sentencing guidelines laid down in the case of R v Lau Tak Ming, CACC 230/1989, the range of sentence for trafficking up to 10 grammes of heroin hydrochloride is that of 2 to 5 years’ imprisonment.

Sentence

17.An arithmetical application of the guideline sentence to the 6.34g of heroin in our case would lead to a starting point of 47 months’ imprisonment. This is the starting point I adopt.

18.I find that there are no aggravating factors in the circumstances of the defendant’s commission of the present offence.

19.I find that the only mitigating factor is the defendant’s timely plea of guilty to the charge. For this, he will receive the full one-third discount.

20.The defendant is sentenced to 31 months’ imprisonment after plea.