HKSAR v. Chan Kam Ping

DCCC 860/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 860 OF 2014

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REASONS FOR SENTENCE

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1.Defendant, you appeared before me this morning and pleaded guilty to a single charge of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The subject matter of the dangerous drug in this case is 17.56 grammes of a mixture containing 12.27 grammes of heroin hydrochloride. 

Facts

3.According to the Amended Summary of Facts which you have admitted, this is a simple stop-and-search case.  The facts revealed that on the afternoon of 12 July 2014, a team of police officers in plain clothes mounted an anti-crime patrol along Castle Peak Road, Cheung Sha Wan.  At 1352 hours, a police officer saw you acting furtively nearby and, shortly afterwards, he intercepted you outside Ground Floor, No 258 Castle Peak Road, Cheung Sha Wan, Kowloon.

4.Upon search, 70 packets containing a total of 17.56 grammes of a mixture containing 12.27 grammes of heroin hydrochloride was found in the left front pocket of your trousers.

5.You were immediately arrested and under caution, you indicated that the white powder was for your own consumption and you begged for a chance. 

6.The police also found two mobile phones and cash of HK$1,332 on your person.

7.In the subsequent video-recorded interview, under caution, you further told the police that you purchased the white powder at the price of HK$6,000 from a male nicknamed “Ah Hung”.

8.The street value of the heroin involved in the case was estimated to be HK$13,170.

The background and the criminal record of the defendant

9.You are now 56 years old and you are still single.  You were born in the mainland and you arrived in Hong Kong in 1979. 

10.In the past, you have eight criminal conviction records of which three are similar trafficking and two possession of dangerous drugs records.  The first two trafficking records were in 1996 and 1997 whereas the third trafficking record, which was also your last conviction record, was in 2009 for which you were sentenced to 30 months’ imprisonment in the District Court. 

11.After you were discharged from the prison in 2001, I was told that you mainly worked as a casual construction worker earning an average monthly income of $10,000.  You only obtained a Primary 6 level education.  At the time of the arrest, you were unemployed.

12.You claimed that you had been a drug addict for 20 years. 

Mitigation

13.In mitigation, Mr Yau, your solicitor assigned by the Director of Legal Aid, told the court that at the time when you were intercepted by the police, you just carried the whole 70 packets of the heroin from your residence.  Mr Yau also told the court that although you have three previous records of trafficking in dangerous drugs, the first two records were more than 15 years ago and he urged the court not to take these records into account when I considered the present sentence.

14.As to your last similar record which was in 2009, Mr Yau acknowledged that this is a more recent record and therefore is perhaps an aggravating factor which the court can take into account.

15.Mr Yau also referred the court to the sentencing guideline in R v Lau Tak Ming & another [1992] HKLR 370.  For a quantity of heroin between 10 to 50 grammes, the starting point should be 5 to 8 years’ imprisonment. 

Sentencing considerations

16.Trafficking in dangerous drug is of course a very serious offence. Anyone who is convicted of such an offence would be expected to be dealt with severely by the court.

17.You are not a first offender and you should know how the courts approach the sentence of a defendant like you.  In 1997 you have already been sentenced by the District Court for 3 years and 4 months and as said, in 2009, you have been sentenced to 30 months’ imprisonment.

18.According to the guideline as stated in Lau Tak Ming (supra), I considered that for the present quantity of drugs, I should adopt a 5 years’ starting point.  However, as you are a recidivist, the starting point has to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand and also the court’s duty to protect the public on the other hand.  (See HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 and 833).

19.In the end, I decided that I should increase the starting point by 6 months.

20.During the course of mitigation, Mr Yau had once informed the court that you claimed that part of the drugs was for your self-consumption.  I queried the validity of this claim especially after hearing the mitigation which was based on your instruction that you carried the whole 70 packets of the dangerous drugs from your residence onto the street. 

21.Upon clarification, I was told that in the end you did not want to pursue any claim that part of the dangerous drugs found on your person was for your self-consumption.

22.The total starting point therefore should be 66 months.  You pleaded guilty for which you are entitled to one-third discount.  There is no other effective mitigation as I can see. 

23.For this offence, you are therefore sentenced to 44 months’ imprisonment which is 3 years and 8 months’ imprisonment.