HKSAR v. Lam Sai Sing

DCCC 342/2019

[2019] HKDC 1676

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 342 OF 2019

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Reasons for Sentence

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Charge

1.The Defendant pleads guilty to a charge of trafficking in dangerous drugs. 

Facts

2.At around 9:30 a.m. on 25h January 2019, uniformed police officer PC 10768 (“PW1”) was conducting routine anti-crime patrol with his colleague PC 26577 in the vicinity of Shek Kip Mei Estate, Kowloon.

3.PW1 spotted the Defendant acting furtively in a park outside Block 23, Shek Kip Mei Estate.  At the time, the Defendant was carrying a shoulder bag and was constantly looking around.  When he saw PW1 from a distance of about 10 metres, the Defendant forthwith turned around and tried to leave the scene quickly.  PW1 suspected the Defendant was in possession of dangerous drugs and intercepted the Defendant for further enquiries.  

4.Upon a body search, altogether 4 transparent, re-sealable plastic bags containing a total of 55 packets of suspected dangerous drugs (Exhibit “P1”) and 1 transparent, re-sealable plastic bag containing 7 packs containing 34 tablets of suspected contraband (Exhibit “P2”) were found inside the Defendant’s shoulder bag (Exhibit “P3”).

5.The Defendant was forthwith arrested.  Under caution at the scene, the Defendant said “I had just opened the stall to sell dangerous drugs and I was arrested by you.  Give me a chance.”

6.At the time of his arrest, the Defendant was in possession of cash in the sum of HK$1,400.30, US$2 and a mobile phone.

7.The Government Laboratory confirmed the following:

(1) Exhibit “P1” was 15.5 grammes of a mixture containing 9.65 grammes of heroin hydrochloride;

(2) Exhibit “P2” was 7 foil packs containing a total of 34 tablets containing 0.47 gramme of midazolam.

8.In January 2019, the estimated street value of Exhibit “P1” and Exhibit “P2” are approximately HK$11,362 and HK$1,292 respectively, in total HK$12,654.

9.At the material time, the Defendant possessed the aforesaid dangerous drugs, Exhibit “P1” and Exhibit “P2” for the purpose of unlawful trafficking.

Mitigation

10.The Defendant is 55 years old.  He is married with two young children.  He had 7 records for possession and 3 records for trafficking of dangerous drugs.  The latter resulted in his being sentenced to DATC in 2001 and to 44 months in 2010.  By reckoning there would have been a lapse of 6 years after his release from prison for trafficking until he committed the present offence.  I regard this a marginal case for aggravation of sentence based on persistent reoffending.  So I do not aggravate his sentence here.     

11.The Defendant now claims that part of the heroin involved was intended for his own consumption, as indirectly supported by a urine test report dated 27 January 2019, ie 2 days after arrest, obtained by CSD which showed positive for opiate. 

12.His counsel Mr. Wai refers to HKSAR v Kong Tat Lung [2018] 5 HKLRD 635 as an example of a reduction in the starting point by 10 – 25% to reflect the incidence of own consumption.  I understand that in para. 52 thereof there was a specific ruling by the trial and sentencing judge that part of the dangerous drug found was for the defendant’s own consumption.  However, this is not the position in our present case.  Before me the Defendant has pleaded guilty to the charge which particularized the entire bulk of heroin (as well as midazolam) for trafficking and also accepted the summary of facts which stated the same in its last paragraph.  Therefore I do not accept the claim that part of the dangerous drug was for his own consumption.

13.According to the guidelines set out in R v Lau Tak Ming [1990] 2 HKLRD 370, the sentence shall be 2 – 5 years for trafficking in up to 10 grammes of heroin. The amount of heroin in our present case, 9.65 grammes, shall attract a sentence of around 57 – 58 months.   

14.In HKSAR v Hung Mei Kwan HCMA 142/2006 the court indicates that for trafficking in 500 – 1,000 grammes of midazolam, the sentence shall be 6 – 12 months whereas for under 500 grammes, the sentence should be in the discretion of the court. Mr. Wai asks me to disregard the midazolam in the sentence as the quantity here, a mere 0.47 gramme, would be too minute to affect the final sentence in light of the predominance of heroin.  I agree. 

Sentencing this Defendant

15.I take a starting point of 57 months.  After a one-third discount for the plea of guilty the sentence is 38 months.  There are no other mitigating factors.