HKSAR v. Fazenda Alice Lopes and Others
Read the full judgment text of DCCC 1038/2010 on BabelCite. This District Court judgment was delivered on 29 October 2010.
1. D1 – D4 plead guilty to 8 charges of trafficking in dangerous drugs in Tai Po Area as follows:
Cites 3 cases
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DCCC 1038/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1038 OF 2010 -----------------
-------------------------- Reasons for Sentence -------------------------- Charges and facts 1.D1 – D4 plead guilty to 8 charges of trafficking in dangerous drugs in Tai Po Area as follows:
2.Except for Charge 7 which concerned the execution of a search warrant on flat where drugs were found pertaining to D1 and D2, all other charges concerned the control buy transactions conducted by an undercover police officer who rang up the respective defendants to purchase drugs. 3.All defendants admitted the offences after arrest and caution. Personal background and mitigation 4.D1 is 35 years of age. She was educated up to F.2. She was divorced 3 years ago. She lives with her 4-year-old son. Her 3-year-old son and 11-year-old daughter have been adopted by foster parents. She has no contact with the father of her children. She has been receiving outpatient treatment for depression on a monthly basis. She has a previous record for possession of dangerous drugs but none for trafficking. She is now serving DATC for the possession offence. 5.D2 is 48 years of age. He was educated up to P.2. He lives with his father and brother. He has 10 records for possession of dangerous drugs but none for trafficking. 6.D3 is now 28 years of age. She was educated up to F.3. She lives with her parents, who take care of her 5-year-old daughter. She has no contact with the father. She has 4 records for possession of dangerous drugs but none for trafficking. 7.D4 is now 38 years of age. He was educated up to P.6. He has a number of records which include 3 for trafficking in dangerous drugs between 1996 and 2004. He lives with his mother and brother. 8.Central to mitigation for each Defendant is the proposition that the various selling transactions could have been made on the same occasion. Thus concurrent or nearly concurrent sentences shall be imposed. The prosecution has also agreed that the present case had involved the use of an agent provocateur. Sentencing principles 9.In R v Lau Tak Ming [1990] 2 HKLR 370, the Court of Appeal has laid down guidelines for traffickers in heroin. Up to 10 grammes of heroin, 2 to 5 years’ imprisonment shall be imposed after trial. 10.HKSAR v Cheung Kwok-leung CACC 539/2002, Beeson J, who delivered the judgment in the Court of Appeal, said:
11.In R v Cheung Chung-ching CACC 546/1984, the Court of Appeal recognized as a mitigating factor the police having used an agent provocateur to incite the appellant into committing an assault. In HKSAR v Ho Yung Keung CACC 35/2007, the appellant was approached by an undercover police officer to sell drugs. The use of an agent provocateur was also accepted as a mitigating factor. Present sentence 12.According to Lau Tak Ming (above), the starting point for sentencing on such small quantity of drugs is between 2 and 5 years. Each Defendant is a small operator. There was no apparent reason for the various control buys to take place on different occasions. The small quantity of midazolam on top of the heroin would make no difference in the sentence. The storing transaction (Charge 7) involved a quantity slighter larger than all the selling transactions but the quantity had remained small. 13.I take a universal starting point of 30 months for each charge for each Defendant. Given their guilty pleas, the sentence is each 20 months. There are no other mitigating factors. All sentences shall be concurrent. 14.As a result of the sentence today, D1’s DATC order shall put to an end.
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