HKSAR v. Chan Yan Keung

DCCC1114/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1114 OF 2010

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Reasons for Sentence

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1.The defendant was convicted upon his guilty plea of one charge of trafficking in a dangerous drug. In sentencing I have considered the whole circumstances of the case including its nature and facts, the nature and quantity of the dangerous drug concerned, background of the defendant and mitigation put forward on his behalf.

2.The facts of the case are simple. 

3.At about 1.48 am on 10 August 2010, the defendant was intercepted on the street by police officers.

4.Upon search, 18 packets of what was later confirmed to be a total of 4.8 grammes of mixture containing 3.96 grammes of heroin hydrochloride were found inside his underwear.

5.Under caution, the defendant claimed the stuff was for his own consumption and said he had swallowed some dangerous drugs. The police officers took him to the Lai Chi Kok Reception Centre.

6.In a subsequent interview, the defendant denied having trafficked in the dangerous drug and claimed again that the dangerous drug was for his own consumption.

7.In the morning on 14 August, four plastic wrappings each containing heroin hydrochloride were found in the defendant’s excrement.  The total quantity of this batch of dangerous drugs is 0.95 grammes of mixture containing 0.72 grammes of heroin hydrochloride.

8.Under caution, the defendant admitted to have bought the dangerous drug for a total price of $750.  He swallowed the dangerous drugs because he was panicked when he was arrested.

9.In a subsequent interview, he said the dangerous drug he swallowed was all along inside his mouth and he had spent $150 on each packet of heroin. 

10.The estimated value of this quantity of heroin hydrochloride was $5,125.

11.The defendant is 52 years of age.  He had received education up to Form 3 level.  He had worked as a hawker, but since 1996 he had had no job and been living on CSSA.  He is living alone and had little contact with his family.

12.He has an appalling criminal conviction record. Altogether, he was on 14 occasions convicted.  His first conviction was in 1980.  For the offence of loitering he was sentenced to a 3 month suspended sentence.  Since 1987 he has been convicted 11 times for dangerous drug-related offences: six times for the offence of possession of dangerous drugs, two times for divan keeping and three times for trafficking.

13.For the trafficking convictions, in 1989 he was sentenced to 10½ years’ imprisonment; in 2003, 16 months’ imprisonment; and in 2006, 5 years 4 months’ imprisonment.

14.Apart from the dangerous drug offences, he was also convicted for managing a vice establishment, copyright offence and dutiable goods offence.

15.Obviously all these punishments have little positive impact on the defendant.  Not long after his discharge from prison on 18 August this year he committed the present offence.

16.Defence counsel said the defendant now has a genuine sense of remorse, realising the need to turn over a new leaf in view of his age.

17.The Court of Appeal suggested in R v Lau Tak Ming [1990] 2 HKLR 370 tariffs for sentencing of this type of offence and said 2 to 5 years’ imprisonment should be considered for trafficking in heroin if the narcotic content is up to 10 grammes.

18.Silke V-P further said that within the suggested bands factors which the court may take into account include the profit which may reasonably be expected to be derived; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender; his previous history of narcotic offences; and matters of mitigation.

19.In my judgment, an immediate custodial sentence is inevitable.

20.The defendant has a long history of dangerous drug offences.  Having regard to what Silke V-P said in HKSAR v Chan Pui Chi, CACC706/1997, this aggravation factor calls for an additional imprisonment term of 6 months.

21.Having considered the whole circumstances and taking the said aggravation factor into account, I adopt a starting point of 3 years and 3 months. 

22.The defendant is entitled to a one-third discount for his guilty plea.  Having considered the whole circumstances, including mitigation submission, I am of the view that this is the extent of discount the defendant is entitled to.

23.Accordingly, I sentence him to 26 months’ imprisonment.