HKSAR v. To Chi Hang

DCCC227/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 227 OF 2012

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant is convicted upon his guilty plea of a single charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

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

3.The case against the defendant is simple enough. It is a stop-and-search case.  At around 8.06 pm on 16 January 2012, the defendant was seen walking near the junction of Kansu Street and Shanghai Street, Ya Ma Tei, Kowloon, where he was intercepted by a policeman. 

4.Upon search, a black plastic containing a transparent plastic bag which contained a total of 130 packets (consisting of plastic wrappings) of suspected dangerous drugs was found inside the jacket pocket of the defendant.  The defendant was immediately arrested for trafficking in a dangerous drugs.  Under caution, the defendant remained silent.  According to the Government Chemist Certificate, the suspected dangerous drugs was 26.43 grammes of a mixture containing 15.21 grammes of heroin hydrochloride. 

5.The defendant is 37 years old.  In the past, he had appeared in the court for 11 times.  He had one “Keeping a divan” record back in 2003 for which he was sentenced to 16 months and also one similar conviction of “Trafficking in dangerous drugs” in 2006 for which he was sentence to 20 months.  There were also a total of 5 “Possessions of dangerous drugs” records and he has been sentenced to the DATC once in 2003.

6.His last conviction was in 2009 for “Common assault” and “criminal damage” charges for which he was sentenced to a total of 5 months’ imprisonment.  He is still single but he has co-habited with his girlfriend for nearly 2 years.  At the time of arrest, he was living on public assistance.  According to the mitigation, he was brought up in a lower working class family whereby both parents had to work long hours of the day to make ends meet.  According to Mr Lee, his solicitor, the defendant has experienced little love, affection and care.  Worse still, the defendant’s father deserted the family when he was only aged 16.    

7.The defendant showed no interest in studying and acquainted with dubious peers at school.  He subsequently quitted schooling during Form 4.

8.According to the antecedent statement, the defendant became a drug addict of heroin since 1987.  Mr Lee further told the court that the defendant’s mother now aged 65, had also suffered Dementia and is now residing at an Elderly Home.  Mr Lee called upon the court to exercise mercy to be as lenient as possible so that the defendant can start a new life after he served his sentence.

9.Trafficking is of course a very serious offence.  The Court of Appeal had already laid down clear guidelines in relation to sentence for heroin in the case of R v Lau Tak Ming and Other [1990] 2 HKLR 370. According to the guideline, between 10 grammes and 50 grammes, the appropriate sentence is said to be 5 to 8 years’ imprisonment.    

10.In mitigation, Mr Lee urged the court to consider the fact that the profit that was going to be earned by the defendant in this case was small.  Although the drugs were worth about HK$17,000 but the reward for the defendant was only a meagre sum of $1,500 and whilst the number of packets of drugs was large, namely a total of 130 packets, the defendant had no knowledge of the exact numbers of the packets involved. 

11.The defendant’s role in this matter was described as only a courier.  It was submitted that his involvement was relatively low in this matter.  In light of the previous records of the defendant in other offences especially in the narcotic offences, Mr Lee was unable to say that the defendant was not a person with a drug history but he stressed the facts that his last conviction is already in 2006 so it has been quite a number of years before he committed this present offence again. 

12.Trafficking in dangerous drugs is of utmost gravity and anyone who has been involved in this kind of criminal activity would expect no mercy from the court.  The defendant has a past similar record in trafficking so he should know better. Whilst I accept that those factors which have identified by Mr Lee in mitigation are valid for consideration, they only operate not to aggravate the matter but they cannot be accepted as effective mitigations.

13.All in all, the single most important consideration is still the narcotic content of the dangerous drug involved.  

14.Of course I have sympathy for the defendant’s aged-old mother who is in need of the defendant’s support and care.  However, the Court of Appeal had said that family circumstances virtually play no part in mitigation especially in serious cases such as trafficking. 

15.In the end, I consider that for this quantity of heroin, the appropriate starting point should be 5½ years.  The defendant pleaded guilty and for which he would be given a customary one-third discount.  I therefore sentence the defendant to 44 months’ imprisonment.