HKSAR v. Lau Tat Wah

DCCC 1135/2017

[2018] HKDC 979

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1135 OF 2017

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REASONS FOR SENTENCE

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1.Defendant Lau Tat Wah 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 19 September 2017, near the junction of Cheung Wong Road and Mong Kok Road, Mong Kok, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 6.43 grammes of a mixture containing 5.12 grammes of heroin hydrochloride.

Admitted facts

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

3.At around 4:19 pm on 19 September 2017, near the junction of Cheung Wong Road and Mong Kok Road, Mr Lau was seen acting suspiciously.  He was stopped by patrolling police officers.  He was shaking nervously whilst being searched, and said, “Ah Sir, I have got something on my person.”

4.From Mr Lau’s left front trouser pocket was found wrapped in tissue paper a resealable plastic bag containing 10 red packets (subsequently found by Government Chemist to contain in total 1.23 grammes of a mixture containing 0.98 grammes of heroin hydrochloride), and 30 white packets (similarly found to contain in total 5.2 grammes of a mixture containing 4.14 grammes of heroin hydrochloride).

5.Mr Lau was arrested for “Trafficking in a dangerous drug”.

6.Back at the station, police found on Mr Lau:-

(a) Cash of $1,140 (consisting of $100 note x 9, $20 note x 11, and $10 note x 2) from his right front trouser pocket; and

(b) Cash of $1,439.50 (consisting of $500 note x 2, $100 note x 3, $20 note x 4, $10 note x 4, and the balance in coins) from his wallet.

7.Under caution, Mr Lau claimed he bought the drug on that day for $2,600 from a man for his own use; that he was arrested shortly after while on his way to work nearby; that the normal price for the drug was $5,200.

8.The retail street value of the drug was estimated to be about $5,461.22.

Criminal record

9.The agreed criminal record shows that Mr Lau has 16 previous convictions 10 of which are drug-related – 3 were for trafficking and the rest were for possession.  The last trafficking conviction was in 2004 while the last possession offence was in April 2017.

Antecedents

10.The agreed antecedents statement shows that Mr Lau is aged 54 now and at the time of the offence.  He was educated to F2 level.  He was a decoration worker before arrest earning $350 a day.  He was last released from prison on 6 May 2017.  He claimed to have a habit of smoking heroin since 1988.  He lived in Mongkok before arrest.

Mitigation

11.Mr Ernest Tang of solicitor mitigated on behalf of Mr Lau.

12.The mitigation submissions may be summarized as follows.

13.Mr Lau is divorced with no children.  His parents are both living.  He lived on CSSA with an amount of $4,100 per month.

14.Mr Tang submitted a urine test report taken shortly after arrest which shows Mr Lau has been tested opiate positive.  Mr Tang used the report to submit that Mr Lau had been a long time drug addict.  Mr Tang submitted that 1/5 of the seized drug or 1.5 grammes of heroin was for Mr Lau’s own consumption and the rest was for sharing with friends free of charge.

15.Mr Tang submitted that the cash from Mr Lau’s trouser pocket was what was left from his work income while the cash in Mr Lau’s wallet was the remainder of his monthly CSSA allowance.

16.When being informed that the prosecution will dispute the claim of self-consumption to the extent of 1/5 and the court’s requirement of evidence to support the claim, Mr Tang informed the court that Mr Lau will not give evidence and simply prayed that the court would treat Mr Lau as intending to use some smaller part of the drug for self-consumption.

17.Lastly, Mr Tang submitted that the trafficking record was sometime ago and urged the court not to enhance the sentence in light of the criminal record.

Sentence

18.I have considered the mitigation submissions made by Mr Tang.

19.I have seen the photographs submitted by the prosecution without objection from defence.

20.Trafficking in a dangerous drug is a serious offence.

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

22.In this case, on the basis of weight alone of the pure heroin content, I would have adopted a starting point of 3 years 3 months’ imprisonment. However, according to the principle enunciated in the cases of HKSAR v Chan Pui Chi [1992] 2 HKLRD 830 and HKSAR v Lau Tsz Ho [2015] 1 HKC 491, and in light of Mr Lau’s appalling record of drug-related convictions, I feel entitled and indeed somewhat enjoined to enhance that starting point by 3 months to arrive at a final starting point of 3 years 6 months’ imprisonment. That hopefully will serve the dual purpose of applying greater personal deterrence on Mr Lau and protecting the community from his criminal activity.

23.In the absence of evidence coming from Mr Lau, I can accept that Mr Lau will use a small but insignificant part of the seized drug for his self-consumption which will not affect the sentence to be imposed upon him.

24.Mr Lau has pleaded guilty in good time for which he shall be entitled to a 1/3 discount in sentence.

25.There are no other mitigating factors worthy of attracting a further discount.

[ Mr Lau, please stand ]

26.Mr Lau shall go to prison for 2 years 4 months.