HKSAR v. Li Tak Wing

DCCC1371/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1371 OF 2010

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Reasons for Sentence

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1.The defendant is charged with two charges of trafficking in dangerous drugs. He pleaded not guilty to the charges, but pleaded guilty in relation to both charges to the offence of possession of dangerous drugs, which was not accepted by the prosecution. The case therefore proceeded to trial.

2.I found the defendant not guilty of the trafficking charges but guilty of the offence of possession of dangerous drugs in relation to both charges.

3.In sentencing, I take into account the whole circumstances of the case, including its facts, in particular, the nature and quantity of the dangerous drugs involved, background of the defendant, and mitigation put forward on his behalf.

4.The facts of the case have been summarised when I delivered the verdict.  

5.In gist, the defendant was stopped by police officers when he was driving a car.  He had in possession the dangerous drugs as set out in the two charges. 

6.Charge 1 concerns 1.75 grammes of a mixture containing 0.87 grammes of heroin hydrochloride. 

7.Charge 2 concerns 10.69 grammes of a mixture containing 3.21 grammes of heroin hydrochloride, 2.62 grammes of powder containing ketamine, 1.24 grammes of herbal cannabis as well as 82 tablets and 0.09 grammes of tablet fragment containing 0.53 grammes of nimetazepam. 

8.The defendant is 34 years of age.  He had received education up to Form 2 and had worked as a lorry driver.  He is single.

9.He is not a first time offender.  Indeed, his conviction record is quite appalling.  On 30 previous occasions he has been convicted.  The first conviction dated back to 1995.  When he was 19 years old, he was send to DATC for the conviction of one charge of burglary.  Thereafter, on numerous occasions he had been convicted of the same offence and other offences involving dishonesty. 

10.He has also been convicted twice for the offence of trafficking in dangerous drugs and 13 times for the offence of possession of dangerous drugs.  The last conviction took place in December 2010 for an offence of possession of dangerous drugs.  He was sentenced to an imprisonment term of 8 months.  He had finished serving this term of imprisonment.  

11.Pursuant to the statutory stipulation, a DATC report was asked for.  Defendant had been detained in DATC for treatment for five previous occasions.  He is now no longer drug-dependant.  Admission to DATC is therefore not recommended.

12.The report provided a detailed account of his drug abuse history and other information which I have taken into account.  Drug problem is obviously the major cause of the predicament of the defendant.

13.Having considered the whole circumstances, including mitigation submission, I am of the view that an immediate imprisonment term is the only appropriate sentence to impose. 

14.In my judgment, the record of the defendant and the fact that he committed the present case whilst he was on bail call for a higher starting point by 3 months.

15.Further, for Charge 2, I take into account the latent risk which, in all the circumstance, though is not high, cannot be ignored.  I also take into the account the fact that Charge 2 concerns more than one type of the dangerous drugs, though the quantity of each was small.

16.I consider the starting point should be raised by a further 6 months. 

17.In all the circumstances, I adopt the following starting points:

Charge 1: 15 months;

Charge 2: 21 months.

18.In arriving at the starting points, I bear firmly in mind that the defendant is being sentenced only for the offence of possession of dangerous drug and have considered the relativity with the sentence for trafficking in the same quantity heroin as set out in R v. Lau Tak Ming [1990] 2 HKLR 370. 

19.The defendant pleaded guilty, he is entitled to a one-third discount for this factor. 

20.Having considered the whole of the relevant circumstances, I am of the view that this is the extent of discount the defendant is entitled to in the present case.

21.The sentences for the two charges should run concurrently.  By way of calculation, the aggregate sentence for the present case should be 14 months’ imprisonment.        

22.At the time the defendant was convicted he was still serving a sentence of 8 months’ imprisonment for his last conviction of possession of dangerous drug.  By now he has completed the whole of the term. If not, I should have considered the totality of the sentences imposed in the two cases.

23.If that course of action is available, I would have ordered 2 months of the sentences in the present case to run concurrently with the sentence imposed in the last case.

24.Such an order is now impossible.  To give effect to it, I reduce the present sentences each by 2 months.  Accordingly, I sentence the defendant as follows:

Charge 1: 8 months;

Charge 2: 12 months.

25.Having regard to the circumstances of the case and the totality principle, I order both sentences to run concurrently. 

26.For the present case, the defendant is to serve a total sentence of 12 months’ imprisonment.