HKSAR v. Si To King Hung

DCCC 268/2018

[2018] HKDC 947

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 268 OF 2018

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REASONS FOR SENTENCE

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1.Defendant Si To King Hung pleaded guilty before me to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The particulars of offence are that he, on 22 January 2018, outside Ground Floor, Nos 32-34 Choi Hung Road, Wong Tai Sin, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 11.37 grammes of a mixture containing 8.78 grammes of heroin hydrochloride and 0.23 gramme of a solid containing 0.18 gramme of heroin hydrochloride.

Admitted Facts

2.The facts admitted by Mr Si To may be summarized as follows.

3.On 22 January 2018, at about 7:55 am, somewhere in Choi Hung Road, Wong Tai Sin, Mr Si To was acting furtively.  Police officers approached him with a view to enquiry.

4.At that moment, Mr Si To dropped 3 small packets of suspected dangerous drugs (Exhibit 1) from his left hand onto the ground.  He then reached his left hand into his trousers.  Police stopped his action and took him to a nearby staircase for a thorough body search.  Police found inside his underpants 2 resealable plastic bags (Exhibits 2 & 3) containing a total of 54 small packets of mixture suspected to be dangerous drugs.

5.Exhibit 1 was later found to contain a total of 0.32 gramme of a mixture containing 0.25 gramme of heroin hydrochloride and 0.23 gramme of a solid containing 0.18 gramme of heroin hydrochloride.

6.Exhibit 2 was later found to contain 21 packets containing a total of 4.40 grammes of a mixture containing 3.45 grammes of heroin hydrochloride.

7.Exhibit 3 was later found to contain 33 packets containing a total of 6.65 grammes of a mixture containing 5.08 grammes of heroin hydrochloride.

8.The estimated street value of the dangerous drug was around $11,426.

9.Under caution after arrest for trafficking, Mr Si To said he was asked by an unknown male to deliver the dangerous drug to a telephone booth at Choi Hung Road for a reward of $500.

10.Cash of $700 and a mobile phone was found on Mr Si To.

11.House search revealed nothing suspicious.

12.Under cautioned VRI, Mr Si To said, inter alia, that:-

(a) In the morning of the day of arrest, a male person asked him to deliver 2 plastic bags of heroin to a telephone booth at Choi Hung Road for a reward of $500 which has not yet been paid;

(b) he received the 2 bags and later placed them inside his underpants;

(c) three small packets of heroin fell off when he was on his way; so he held them in his hand and took a bus; he was to put them back into the bags but he was intercepted by the police already;

(d) the cash of $700 found on him was his savings and the mobile phone belonged to him;

(e) he used to work as a casual construction worker but was now unemployed; and

(f) he used to receive CSSA but has ceased to do so since 2016.

Criminal record

13.Mr Si To’s agreed criminal record shows he has 3 previous convictions consisting of two trafficking in dangerous drug convictions and one possession of dangerous drug conviction.  The last conviction was in 2007 for trafficking for which he was sentenced in the District Court to 40 months’ imprisonment.

Antecedents

14.Mr Si To’s agreed antecedents statement shows that he is aged 46 (45 at the time of the offence).  He has received secondary 3 education in the Mainland.  He was unemployed at the time of arrest.  He claimed to be addicted to heroin.  He is married and resided in Ping Shek Estate.

Mitigation

15.Mr Stephen Hung of solicitor mitigated on behalf of Mr Si To.

16.The following is a summary of the mitigation submissions.

17.Mr Si To has a supportive family (wife and son aged 19) who regularly visited him when he has been kept in custody since arrest.  Mr Si To’s urine report dated 23 January 2018 shows him to be opiate positive.

18.The reason why he committed this offence so long after his last discharge in 2010 was that he again hanged around with the wrong people – fellow drug addicts.  The more drug he took, the less able he was able to perform his construction work.

19.He is not too old and can still turn a new leaf after discharge for this offence.  The future depends on himself.

20.Mr Si To’s strongest mitigating factor is his guilty plea.

21.The tariff for trafficking in up to 10 grammes of heroin is 2 to 5 years.  Mr Hung asked the court not to take more than 5 years as the starting point despite [Mr Si To’s] record the last of which was more than 10 years ago.

Sentence

22.I have considered the mitigation submissions put forward by Mr Hung.

23.Trafficking in a dangerous drug is a serious offence and a deterrent imprisonment sentence is called for.

24.The case of R v Lau Tak Ming & Ors [1990] 2 HKLR 370 has laid down tariff sentences for trafficking in heroin.  For trafficking in up to 10 grammes of heroin hydrochloride, the sentence should be between 2 and 5 years’ imprisonment.

25.In this case, given the weight of the heroin trafficked in, I shall adopt a starting point of 4 years 9 months’ imprisonment.

26.I have considered whether to enhance the sentence in light of Mr Si To’s criminal record but decided against such a course for the reason that his last conviction though one of trafficking was more than 10 years ago.  I hope that he takes the court’s leniency on board and makes a resolution on discharge never to touch heroin or any other drug again.

27.Mr Si To has pleaded guilty in time and so he will be given a 1/3 discount in sentence.  There are no other mitigation factors of sufficient weight to warrant a further discount.

28.He shall go to prison for 38 months.