HKSAR v. Lam Sai Sing

DCCC 1125/2017

[2018] HKDC 618

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1125 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of trafficking in a dangerous drug. The date of the offence is 11 September 2017, location in Shek Kip Mei Estate. The quantity of narcotic being trafficked is 4.49 grammes of heroin hydrochloride.

2.The facts show this occurred out of a stop and search by police at the Shek Kip Mei Estate.  On a body search of the defendant, various items were found.  They are described as a clear mesh bag containing 15 pellets of what was heroin, eight pellets in a red plastic sheet and five in a white plastic sheet.  A blue cloth which had two resealable transparent plastic bags, they had 22 pellets of what was heroin.  Different colours, 11 were red plastic sheeting and another 11 in the white plastic sheeting.

3.On arrest of the defendant, he said he got the drugs for sale because he needed some money he says to cure his feet presumably to get medication.  Also found on him were some mobile phones, SIM cards, some cash.

4.The defendant elaborated on his reply to caution in a subsequent video-recorded interview.  In summary, he said he had the drug for trafficking described as “pak fun”, white powder.  He had bought it off a man called Ah Wai in Yau Ma Tei, gave details of the price of the packets. Apparently, the red plastic-sheet-wrapped packets were small ones while the white plastic-sheet-wrapped packets were large ones.  He had gone to the location where he was arrested to sell dangerous drugs because he knew that was the location where people bought them. 

5.He then added he suffered from gout and sold the drugs in order to earn money to relieve the pain of his feet, and the drugs were in the zipper bag for the convenience of the transactions.  After he had sold some of the drugs, two large packets, he went to a medical clinic and also bought some food with the money. 

6.He says he is a drug user.  He explains his use of drug as due to the pain in his feet, and he consumes two of the smaller packets every day to deal with his addiction and also his pain.  He does not work but does not receive CSSA. 

7.The estimated value of 8.68 grammes, although that is not the actual quantity of narcotic, is $5,511.80.   

8.The defendant’s antecedents show he is a male aged 53, unemployed, has been in prison before and his last discharge from Lai Chi Kok was on 19 July 2013.  He says - and appears to be borne out by his criminal record - he has been a drug addict since he was 19 years old.  He is married and has recently become a father.  Although that is not in the antecedents, that was in mitigation.  

9.As far as his criminal record is concerned, 15 previous court appearances, 9 of them for possession of dangerous drugs and going through a -- starting off with being fined, then periods in drug addiction treatment centre on a number of occasions and also short periods of imprisonment.  He does have convictions for trafficking back in 2001 where he was sentenced to drug addiction treatment centre, and more recently, 2010, some eight years ago where he received quite a substantial sentence of 44 months’ imprisonment for trafficking in a dangerous drug.

10.As far as further mitigation, there are two medical reports which set out the defendant’s medical problems.  There is the gout that he complains about in his video-recorded interviews, and that is certainly borne out by the medical reports.  He also suffers from congestive heart failure and has been hospitalised for that.  He more recently points out that he has a girlfriend who gave birth to a baby girl in March 2018 while the defendant was in custody, and the baby, unfortunately, died earlier this month due to liver failure.  Naturally, this has had a major psychological impact on the defendant as he was not able to be with his girlfriend at this unfortunate time, and the defendant feels a lot of guilt and some shame as a result of this happening.

11.In terms of sentencing, the possession for the purpose of trafficking of this quantity of drug is largely determined by guideline sentencing.  For heroin hydrochloride, up to 10 grammes of the drug and for the purpose of trafficking will lead to a sentence of between 2 to 5 years’ imprisonment, depending on the quantity of the drug in question and of course any other factors that are relevant.  

12.The other relevant factors that need to be considered in this case are, firstly, the defendant’s criminal record.  It shows previous trafficking offences when they would be an aggravating feature to increase the starting point.  Secondly, the question of whether the defendant’s reported self-consumption of drug is sufficient to enable him to have -- for that to be considered as a mitigating factor in this case.  And then, finally, the extent of the defendant’s discount beyond that which is, it is argued, should be a one-third discount.  The defendant has always indicated his intention to admit this offence and indication of plea at an early stage.

13.I will firstly deal with the starting point for sentence.  I say it lies within the band of 2 to 5 years’ imprisonment.  The quantity of drug here is 4.49 grammes of heroin which puts it below the midpoint of the quantity of 10 grammes.  What I am going to do is take a starting point for sentence of 33 months’ imprisonment. 

14.I need to consider now the question of any aggravating factors.  That would be borne out by the criminal record.  The purpose of enhancement of a sentence is to deal with what is described as persistent offending.  The defendant’s most recent offence is back in 2010, but it must involve a substantial quantity of whatever drug was involved because the sentence was 44 months’ imprisonment.  I consider that it is still an operative fact in relation to this sentence.  What I shall do is enhance the sentence by a 3 months’ imprisonment, having regard to the length of time as occurred between this offence and that previous offence.  So the starting point of sentence is now enhanced to 36 months’ imprisonment.

15.I now need to consider the question of the defendant’s own consumption of the drug.  He says he uses the drug for medication.  Clearly, even were the defendant not using it for medication, he clearly is on his criminal record a long-term consumer of this drug, of the drugs that he had: first conviction in 1995, a number of attendances at the drug addiction treatment centre as recently as 2010.  Of course, to be in the drug addiction treatment centre, you need to be considered to be an addict.  I have certainly no reason to find other than that the defendant is a hardened addict to drugs over a substantial period and would naturally be trying to consume drugs every day as is set out in his video-recorded interview.  But also of course the defendant, it is established in evidence he does suffer from gout, and no doubt the consumption of the drug would assist him to deal with the pain. 

16.I think it is established in the evidence in this case the defendant is a long-term drug addict; that his consumption of the drug as set out in his video-recorded interview can be supported by the evidence; that the defendant is on the face of it what we describe as a street-level trafficker where he buys drugs to support his own habit and sells drugs in order to have enough money to purchase other drugs.  On that basis, I do consider the defendant would consume a significant portion of the drug.

17.Where that is established to the court’s satisfaction, a discount of between 10 to 25 per cent from the starting point for sentence can be entertained.  What I shall do is capitalise that figure of 6 months’ imprisonment, bringing the starting point for sentence down to 30 months’ imprisonment.  Defendant is entitled, as I have said, to a one-third discount from that, having regard to his indication of pleading guilty from an early stage.  So the final sentence for this charge will be one of 20 months’ imprisonment.