HKSAR v. Le Van Thanh

DCCC879/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 879 OF 2010

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Reasons for Sentence

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Charge

1.The defendant was charged with and pleaded guilty to a count of trafficking in a dangerous drug under section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

The Facts

2.The facts of the case are summarised as follows.

3.On 22 June 2010, at about 1618 hours, the police officers were at Room B, 2nd Floor, 1077 Canton Road, Mong Kok, Kowloon (hereinafter referred to as “the premises”), attending to a matter.  The defendant and his girlfriend and three children were residing in the premises.

4.As the police officers suspected that there were dangerous drugs, they searched the premises.  Inside a glue gun in the kitchen, 39 packets which contained 6 grammes of a mixture containing 4.94 grammes of heroin hydrochloride were found.

5.The defendant was arrested.  Under caution, the defendant admitted that the drugs were his and that he was just making a living and he would not sell drugs any more.  But later the defendant stated that the said drugs were for his own consumption.

6.On 28 June 2010, whilst the defendant was detained in the Isolation Cell of Lai Chi Kok Reception Centre, a packet which contained 0.16 grammes of a mixture containing heroin hydrochloride was found in his excrement.

7.Under caution, the defendant admitted that he swallowed the said drug when he was arrested by the police on 22 June.

8.The estimated street value of the drugs in this case would be about HK$5,378.

The Defendant’s Background and Mitigation

9.The defendant, aged 36, was a decoration worker earning $5,000 per month.  He came to Hong Kong in 1987.  Three years later he started to have his first criminal conviction.  Up to now he has 18 previous convictions, seven of which were drug related.  In 1991 he was convicted of possession of dangerous drugs for the purpose of unlawful trafficking.  In 1993, he was convicted of trafficking in a dangerous drug. 

10.In 1996, he was married but separated 3 years’ later.  His 9-year-old daughter has always been looked after and taken care of by his wife.

11.From his conviction history, it was clear that the defendant was a deep-rooted drug addict.  For the past 20 years he had never taken any chance given by the courts to turn over a new leaf. 

12.In 2006 the defendant met his current girlfriend.  They have a 1½-year-old son.  With a meagre income, the defendant could hardly support his family and at the same time satisfy his vice habit in taking drugs.  Selling drugs would seem to be the most profitable way of earning a living.

13.The defendant has during mitigation and under legal advice abandoned his early contention that one-third of the dangerous drugs found in the present case was intended for his own consumption.  As such, this court was asked not to address this issue.

Sentencing Guidelines

14.Sentencing guidelines for trafficking in heroin after trial were set out by the Court of Appeal in R v Lau Tak Ming and Another, CACC230/1989. 

15.The normal sentence range for a quantity up to 10 grammes of heroin would be 2 to 5 years’ imprisonment.

Sentence

16.This is the second time, if not the third time, that the defendant was convicted of a drug trafficking offence.

17.Having taken into consideration of all the circumstances of the case, including the background of the case and that of the defendant, his guilty plea, mitigation put forward by his counsel and sentencing guidelines, this court would adopt a starting point of 3½ years, i.e., 42 months.

18.The defendant is entitled to a one-third discount for his guilty plea so as to reduce the sentence to 28 months’ imprisonment.

19.There were no other mitigating factors which would justify a further reduction in sentence.  As such, the defendant has to serve a term of 28 months’ imprisonment.