HKSAR v. Chang Tsan Ho

DCCC433/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 433 OF 2012

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Reasons for Sentence

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1.In these proceedings the defendant faces one count of ‘trafficking in a dangerous drug’, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, and one count of ‘possession of dangerous drugs’, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded guilty to both charges and is convicted upon his pleas and the facts as admitted by him in court.

Facts of the Case

2.The facts reveal that in the morning hours on the 4th day of March 2012, the police intercepted the defendant inside a building situated at Yu Chau Street and found a bag of containing 21.72 grammes of heroin hydrochloride. He was arrested and remanded in Lai Chi Kok Reception Centre. During his remand on the 7th day of March 2012,an assistant officer of the Correctional Services Department found another two bags of heroin hydrochloride containing respectively 0.01 gramme and 0.08 gramme in his excrement. 

3.Under caution, the defendant stated that he had the dangerous drug in Charge 1 for self-consumption and that he had accidentally swallowed the two bags of dangerous drugs under Charge 2. He also stated that he had purchased the lot on the 4th day of March 2012. At the time, he had $15,000 with him.

4.Of the two charges, Charge 1 is obviously more serious.  I would not labour to spell out the seriousness of trafficking in dangerous drug and the ill effect of dangerous drug on the society.  There are very clear guidelines set out in the case of Lau Tak Ming [1990] 2 HKLR 370 and in Abdallah Anwar Abbas [2009] 2 HKLRD 437. 

5.The quantity involved in the present case for the 1st charge is 21.72 grammes. It falls into the bracket of 10 to 50 grammes, warranting a term of imprisonment ranging from 5 to 8 years.  In this case, I do not see any reason to justify my departure from this guideline.  Since the quantity involved is towards the lower end of the bracket, I will adopt 6 years’ imprisonment as a starting point for Charge 1.   

6.In respect of Charge 2, the defendant had brought the dangerous drugs into the custody of the Correctional Service.  This is generally considered to be an offence of a much more serious nature than a normal case of possession.  The defendant contended that he swallowed it by accident.  I cannot bring  myself to give any credence to such an explanation.  I consider, in view of the relatively small quantity involved, 6 months in prison an appropriate starting point for Charge 2.

7.I turn to consider the mitigating factors in this case.  The defendant is aged 31.  He is single.  He has a total of four items in his criminal record but none of which involved dangerous drug.  The first record of conviction is dated back to 1997, but the latest one took place in July last year.  For all of the offences, he was either fined or was given a probation order.  I accept that the lightness of the sentence orders show that those must not have been serious transgressions. Nonetheless, he cannot now claim that he was a man of good character and expect the court to be more lenient than usual towards him. 

8.According to the Defence Counsel, prior to his arrest the defendant was working in a garage and living with his parents.  Four letters respectively from the defendant, his parents and his sister have been produced in court. All of them were pleading for leniency.  I have read the letters carefully, and found none of which contain any valid factor which could convince me that I should be exercising my power to be more lenient than usual.  The only valid mitigating factor is his guilty plea.

9.In accordance with the accepted practice, I would reduce the sentence by one-third.  Therefore, in respect of the 1st count, 6 years is hereby reduced to 4 years; and for the 2nd count, 6 months is hereby reduced to 4.  I would order that 1 month of the 2nd count to run consecutively with the 1st count.  In all, the defendant is to serve a term of imprisonment of 49 months. 

10.I have reconsidered the mitigation speech but the defence lawyer and the facts of the case but I found nothing to warrant the exercise of additional clemency.  Therefore, the defendant is to serve a term of imprisonment for the two offences for 49 months.