HKSAR v. LI WAI KEUNG

DCCC1356/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1356 OF 2010

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Reasons for Sentence

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1.  Li Wai-keung, you have pleaded guilty to trafficking in 8.45 grammes of a mixture containing 6.28 grammes of heroin hydrochloride.

2.  In the afternoon of 18 October last year, you were seen by a police officer acting in a manner which attracted his suspicion outside a building in Lai Chi Kok Road in Sham Shui Po.  You entered the building and then emerged a few minutes later.  The police officer stopped you and found that you had 50 packets or pellets of dangerous drugs in your shirt pocket.  Those are the drugs that are the subject to the charge.  Their estimated street value at the time was $6,641. 

3.  You claimed that you had just bought the heroin inside the building for your own consumption.  You alleged that you would bring the drugs that were left to Yung Shu Tau Park where you would sell them to a friend or friends and make a profit of $10 on each packet or pellet. 

4.  You are a man with a long criminal record, stretching back to 1983.  11 of your previous convictions relate to dangerous drugs and 2 of those convictions relate to trafficking in dangerous drugs. 

5.  In the eloquent submissions that Mr Harris has made on your behalf, he informed me that at that time you were still a heroin addict and that by far the greater part of the 50 packets were for your own consumption.  Any remaining packets would be supplied by you to your drug addicted friends or colleagues and that you would make a minor profit of $10 a packet. 

6.  Bearing in mind the large number of packets involved, your previous convictions for trafficking, the fact that you were on public assistance and that the drugs had a street value of over $6,000 and yet you still had $2,147 on you at the time of your arrest, I informed Mr Harris that while I was prepared to accept that some of the drugs may have been for your own consumption, I was not prepared in the absence of further evidence to accept that the majority was. 

7.  You then chose to give evidence and called your wife as a witness.  You said that at the time of your arrest, you were consuming about 3 pellets of dangerous drugs per day.  You claimed that you had bought this quantity of drugs which you said would last for about half a month because you were due to start some casual work at the end of the month and it would not be easy to go to buy drugs.  You estimated that you would use around 80 per cent for yourself but would be prepared to sell the remainder to friends or colleagues who called you and told you that they could not find drugs. 

8.  You explained the fact that you had been able to buy this quantity of drugs and still have $2,147 on you at the time of your arrest, despite the fact that you were receiving public assistance of about $3,000 per month, by maintaining that you undertook casual decoration work and that the deposits of $15,000 and $5,700 which were made to your bank account on 26 September and 15 October came from your wife.  You called your wife to support your account that she had deposited the sums of $15,000 and $5,700 into your account.

9.  I have no doubt that the account I was being given by you was not true.  On your account you had learned that there were drugs available at the building in question from a middleman with whom you had contact over the telephone.  You maintained that you had told the middleman that you intended to buy 50 packets.  I do not believe that a man with your drug history who would have been well aware of the implications of being caught with a multiplicity of packets of drugs would have specifically requested 50 packets if the drugs were primarily for self-use.

10.  Moreover, your evidence as to the ease with which you could contact the middleman shifted during the course of your evidence.  Having said that you spoke to him on the telephone about how to obtain these 50 packets, you later maintained that you could not simply contact him on the phone.  You said you had to go to the park in order to contact him.  At one point you said it would not be difficult to contact him because he regularly frequented the park.   Later you maintained it was troublesome to contact him because you had to wait for long periods of time at the park before he turned up. 

11.  Your evidence was that you would sell drugs to a small number of friends or colleagues who called you because they were in urgent need of drugs and could not obtain any.  Yet, having told the court that in the past you had been with these friends or colleagues to buy drugs, you were then asked why if they had been with you then to buy drugs, they could not go themselves to buy drugs rather than buy them from you.  Your answer was not, as one would have expected if your account was true, that they were unable to find drugs in the street, but it would be more expensive to buy them in the street. 

12.  You told the court that in October 2010 your wife did not know that you had resumed taking drugs.  You said that the reasons you had asked her for the $15,000 was because you wanted the money to lend to a friend of yours who was running a decoration business so that he could purchase tools and materials.  You said that you lent the money to your friend.  You claimed that he had now disappeared, but that at least on one occasion he had made partial repayment to you.

13.  Your wife did not support this account.  She said that she was aware that you were still taking drugs in September and October last year.  She said that at the time she gave you the money, that is the $15,000, you had not told her why you needed the money, but two days later you had told her that you needed the money to make repayment of a debt.  She said that the only explanation you gave for wanting the second sum of $5,700 was for “cash flow”.  She said she was not clear if she thought that you would use the money to buy drugs.  She maintained that you had moved out from living with her a couple of months earlier and that she was not aware of the reason.

14.  I did not believe this nor did I believe that she, a security guard earning $6,600 per month, would give or lend you sums of money of this magnitude knowing that you were taking drugs and when you had given her no real explanation as to why you wanted the money.

15.  I find I can place no weight on your evidence insofar as it is exculpatory including your evidence as to the source of funds going into your bank account.   Nor can I attach any weight to your wife’s evidence that she was the source of the sums of $15,000 and $5,700 deposited into your bank account. 

16.  Viewing the totality of the evidence, including the number of packets or pellets in your possession, the fact that you are on public assistance, the street value of the drugs found on you and the amount of cash found on you, I am satisfied that while a minor amount may have been for your own consumption, the majority was for the purpose of trafficking. 

17.  If I had not thought that there was a possibility that some of the drugs were for your own consumption, I would have regarded an appropriate starting point, bearing in mind your history of trafficking, as 4½ years’ imprisonment.  I reflect the possibility that some part of the drugs may have been for your own consumption by adopting a starting point of 4 years’ imprisonment. 

18.  You have pleaded guilty and are entitled to a discount to reflect that fact.  In view of the fact that you gave and called evidence in the Newton Inquiry which I did not find it true, in my view the appropriate discount should be 25 per cent.  I sentence you to 3 years’ imprisonment.