HKSAR v. Li Lo Hoi

DCCC796/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 796 OF 2011

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Reasons for Sentence

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1.The defendant pleads guilty to Charge 1, possessing one packet of 0.1 gramme of a mixture containing 0.07 gramme of heroin. He pleads not guilty to Charge 2 which was trafficking in dangerous drugs.

2.After trial, I convicted him of possessing the heroin part only, namely 10.84 grammes of a mixture containing 7.84 grammes of heroin hydrochloride.  Charge 2 also included 506 tablets of midazolam but I find the defendant had doctor’s prescription to his possession so he is not guilty of possessing the midazolam tablets. 

3.On Charge 2, defendant indeed admitted possession of the heroin so we can treat defendant as pleading guilty to Charge 2 in relation to the heroin part as well. 

4.Defendant is aged 53.  Between 1974 and 2011 he had 12 convictions, 7 of which were related to possession of dangerous drugs or equipment for taking drugs.  He had been sent to DATC in 1984.  He was treated leniently in 1988 when he was only given a fine.  Actually, twice in 1988 he was fined for possessing drugs.  In 1989 he was given another chance.  He was put on probation for 12 months.  In 2002 he was sent to DATC again for possessing drugs.  In 2003 he was sent to prison for 6 months for possessing drugs and on another occasion in that year he was only fined $2,000 also for possessing drugs.  In 2006 and 2011, he had other convictions but they were not drugs related, so defendant was last convicted of drug offence in the early part of 2003.  The DATC Report discloses that he was still addicted when he was caught in this case in May 2011 but not now.  Defendant had been taking heroin since 1976. 

5.In this case, defendant was first caught for possessing a small packet of heroin outside his home.  That is the subject matter of Charge 1.  He was taken back to his place where police found altogether 10.84 grammes of a mixture containing 7.84 grammes of heroin.  That lot actually included a larger packet in defendant’s bedroom containing 2.12 grammes of a mixture containing 1.52 grammes of heroin hydrochloride.  The rest was in 41 small packets of heroin contained in a cooking utensil in the kitchen. 

6.In mitigation counsel mentions about the family background of defendant, his wife and son who is still studying certainly need him.  Of course they want defendant to rehabilitate.  So far, defendant has not reformed himself. 

7.In the present case, defendant was in possession of some heroin packets.  Counsel says they were not in a huge quantity but they were not minute in quantity either.  Defendant had been given chances by the court in the past.  He did not treasure them.  He still clings to his addiction.  He would rather use his money to spend on buying expensive drugs. Of course, to satisfy his need he had to buy quite a sum.  Therefore, he was caught for possessing the drugs in question in relation to both charges.  Of course, after trial I found defendant only had those drugs with him for his own consumption.  I also believe that he did not have any intention of giving or selling them to others. 

8.In sentencing him, I would not add latent risk as an aggravating factor.  The packet in Charge 1 was found on his person, the others were found at his home.  The packet in Charge 1 only had a very small quantity of heroin, 0.07 gramme.  In the circumstances of the case I think it is right to adopt 6 months’ imprisonment as the starting point. 

9.The 2nd charge contains a much larger quantity of drugs, 10.84 grammes of mixture containing 7.84 grammes of heroin hydrochloride.  In the light of defendant’s poor record, I think it is only right that even though the drugs were for his own consumption, 15 months’ imprisonment as the starting point is appropriate in this case.  I give him one-third discount for his admitting possession of which, so he is sent to prison for 10 months on Charge 2 for possessing that quantity of heroin hydrochloride. 

10.There are 2 charges.  It is clear that defendant had the drugs placed at his home.  And on the day in question, when he was going out he took one small packet with him and that gave rise to Charge 1.  So in the circumstances, it is only right for me to order the two terms of imprisonment to run concurrently, so defendant has to go to prison for `10 months.