HKSAR v. LUI TSUN SHING (ALSO KNOWN AS LUI KUNG)

DCCC 881/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 881 OF 2016

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REASONS FOR SENTENCE

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1.  Lui Tsun Shing you have pleaded guilty to one charge of trafficking in 7.97 grammes of a mixture containing 6.21 grammes of heroin, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.  In summary at about 5:18 p.m. on 6 August last year PC 11026 spotted you acting furtively at the sitting-out area near the junction of Portland Street and Changsha Street.  When you saw PC 11026 you tried to swallow two transparent resealable plastic bags containing the heroin. 

3.  Under caution and in a subsequent video interview you claimed you bought the drugs for your own consumption from a man called Wing Zai for $2,000.

Mitigation

4.  In passing sentence, I have carefully considered everything said on your behalf by Mr Yu as particularised in his written submission.

Starting point

5.  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years imprisonment[2].    

6.  I am satisfied the proper starting point after trial for 6.21 grammes of heroin based on quantity alone is 3 years and 10 months imprisonment.  

Own use

7.  The two transparent resealable plastic bags contained 20 and 21 packets of heroin. You claim that 30% of the plastic bag containing 20 packets were for your own consumption[3]. This is approximately 1 gramme of heroin.

8.  The prosecution accept part of the drugs may have been for your own consumption.  Taking into account you have previous convictions for possession of drugs and have been sentenced to a Drug Addiction Treatment Centre, I am prepared to accept about 1 gramme of the heroin was for your own consumption.  

9.  In deciding how much weight should be attached to this fact I have considered the decision in HKSAR v. Wong Suet Hau[4], in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang[5] and HKSAR v Cheuk Kin Man[6], cited by Mr Yu.

10.  In Chow Chun Sang the Court of Appeal said that where all or part of the drugs were intended for own consumption the discount, depending on the circumstances, should fall somewhere between 10 and 25% of the basic starting point. 

11.  The Court of Appeal have subsequently explained that the 10-25% discount only applies where the court is satisfied that a significant portion of drugs is for own consumption[7]. One gramme of heroin is 17% of the total narcotic content.  The difference between trafficking in 6.21 grammes of heroin and 5.21 grammes of heroin is not very significant.  I am not satisfied a significant portion of the heroin was for your own use.   

12.  Taking into account that the drugs were carried on the street; there was a total of 41 packets of heroin; possession of drugs carries a sentence in any event; and the latent risk factor, I am satisfied the starting point should be reduced by 2 months to one of 3 years and 8 months imprisonment. 

Aggravating feature

13.  You have appeared in court on 25 occasions amassing a total of 27 convictions, 20 of which are for offences relating to dangerous drugs.  You have three convictions for trafficking in drugs in 1996, 2005 and 2013 and one for keeping a divan in 2003.  The other convictions are mostly for possession of drugs, your last conviction being in 2015.  

14.  The courts have repeatedly said that the fact that the trafficker has engaged in trafficking on a previous occasion is an aggravating feature of sentence.  I am satisfied the starting point is to be enhanced by 4 months to 4 years imprisonment. 

15.  Giving you full credit for your plea of guilty you are convicted and sentenced to 2 years and 8 months imprisonment.