HKSAR v. Lee Kwok Wai

DCCC 566/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 566 OF 2009

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to trafficking in a dangerous drug.

2.At 9:33 p.m. on 15 April 2009, the police were conducting an anti-dangerous-drug operation in Tai Yuen Estate, Tai Po. At 10:26 p.m. the Defendant was walking from the outside of Room 720 to the lift lobby of 7/F of Tai Lok House. The police searched him and found a cigarette packet containing 5 resealable plastic bags each containing 20 packets of substance (in total 100 packets) in his right front pant pocket.

3.After arrest and caution, he said it was for his own consumption. In a cautioned interview in the police station, he said he had bought the drug from a female in Tai Lok House, Tai Yuen Estate at $11,000. He put the drug inside the fire hose reel at 7/ F, Tai Lok House. He was retrieving it when intercepted by the police at the lift lobby.

4.The substance was later analysed to be 15.05 grammes of a mixture containing 8.78 grammes of heroin hydrochloride.

Mitigation put forward

5.He is now 39 years of age, a divorce. He has one previous conviction for trafficking. His drug habit began in 2000. His parents and siblings had all migrated to America. He lives alone. He has a girlfriend in Shenzhen. They have a plan to marry but this has to be postponed because of the present case. He last worked as an exhibition booth worker in the Convention Centre. However, since March 2009, his company has had no work allotted to him. His boss indicated that he would be allotted job when available.

Sentencing guidelines for trafficking in heroin

6.The Court of Appeal in The Queen v Lau Tak Ming [1990] 2 HKLR 370 has laid down guidelines for trafficking in heroin whereby a narcotic weight of up to 10 grammes shall attract 2 to 5 years’ imprisonment.

7.Within the suggested bands, the sentencing judge might properly take into account the following factors:

(1) The profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of the dangerous drugs involved;

(2) The number of packets;

(3) The type of mixture containing the narcotic;

(4) The degree of involvement of the offender; and

(5) His previous history of narcotic offences and matters of mitigation which may have been advanced on his behalf.

Sentencing the Defendant

8.There were 100 packets of drug. This suggested a large circulation to small users. I take a starting point of 4 years and 6 months’ imprisonment. I reduce it by one-third because of his plea of guilty. There are no other mitigating factors. The sentence is 3 years.