HKSAR v. QUACH VAN-KHANH

DCCC 20/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.20 OF 2013

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. Particulars of the charge are that the defendant on 31^st August 2012 unlawfully trafficked in 147.03g of a mixture containing 35.75g of heroin hydrochloride.

Facts

2.  The defendant was spotted by patrolling Police officers putting a white bag into the hole of a tree along Castle Peak Road in Tuen Mun. The defendant was then seen taking out a black bag from his trousers pocket and was about to put that bag into the same hole. Police officers got out of their patrolling vehicle and revealed their identity. The defendant dropped the black bag and ran, but was eventually intercepted by police officers.

3.  Inside the white bag were 56 plastic straw packets and 1 plastic bag, both containing dangerous drugs. Inside the black bag were another 56 plastic straw packets and 1 plastic bag, both containing dangerous drugs.

4.  Police searched the defendant and found a cigarette box in his left front trousers pocket which contained 2 plastic bags with dangerous drugs inside.

5.  The defendant was arrested and cautioned. Under caution, the defendant admitted that the white bag contained heroin and that he was helping an unknown person to hide the bag in the tree hole. The defendant was promised a reward of $1,400.

6.  In the subsequent video recorded interview, the defendant further admitted that a person nicknamed ‘Ah Lun’ told him to hide the bags in the tree hole and the defendant would be paid the $1,400 the next day.

7.  The defendant received the 2 bags from another unknown person about 15 minutes before his arrest.

8.  The heroin in the cigarette box however belonged to the defendant himself.

9.  The total street value of all the drugs found on the defendant was estimated to be about $123,358.

Previous Convictions

10.  The defendant has 12 records including 18 charges, one being for trafficking in dangerous drugs and one being for possession of dangerous drugs in 2007 and 2009 respectively.

Mitigation

11.  The defendant is 47, educated up to secondary level in Vietnam. He was unemployed prior to his arrest. He is single and has no fixed abode in Hong Kong.

12.  Mr. Wan for the defendant very helpfully provided me with a written submission on mitigation. There are basically 2 points raised. First is that 2.22g of the heroin was for the defendant’s own consumption. The second point is that the sentence should not be enhanced because of the defendant’s past convictions.

Sentencing Tariff

13.  The applicable guidelines for trafficking in heroin hydrochloride are found in the case of R v Lau Tak Ming [1990] 2 HKLR 370. Sentencing for trafficking in heroin for quantities between 10g and 50g is that of 5 to 8 years’ imprisonment.

Sentence

14.  The maximum sentence for trafficking in dangerous drugs is life imprisonment.

15.  I will accept that 2.22g of the heroin was for the defendant’s own consumption and that would leave 33.53g of heroin for trafficking.

16.  The defendant’s previous conviction for trafficking in dangerous drugs was some 5 years ago and he had already been punished for that. I do not find he is a repeated drug trafficking offender yet and will not increase his sentence on that basis.

17.  Having read the written mitigation on behalf of the defendant, I find however that there is nothing in terms of the defendant’s personal circumstances that would allow me to depart from the guideline sentence.

18.  I will adopt a starting point of 81 months’ imprisonment based on the defendant’s trafficking of 33.53g of heroin hydrochloride. The defendant is given the full one third discount for his guilty plea and is sentenced to 54 months’ imprisonment.