HKSAR v. TSOI WAI LUN

DCCC 511/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 511 OF 2014

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Reasons for Sentence

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1. The defendant pleaded guilty to one count of trafficking in a dangerous drug and was convicted accordingly.

2. The facts of the case are straightforward.  At about 5:05 pm on 18 April 2014, the defendant was spotted by a police officer (PW1) in the methadone clinic waiting area at Kwun Tong Jockey Club Health Centre.  The defendant tried to turn away quickly upon seeing the officer.  The defendant was sitting on a wheelchair and he appeared nervous.

3. PW1 conducted a search on the defendant in the presence of another officer.  PW1 noticed that the defendant was putting his hand into the bottom of the cushion on the wheelchair.  PW1 then lifted up the corner of the cushion and found five plastic bags which contained a total of 77 pellets of drugs underneath the said cushion.

4. Under caution, the defendant admitted possession of the 77 pellets and claimed that the drugs were for his own consumption.

5. At the time of arrest the defendant had $476‑odd in his possession.

6. Chemical analysis confirmed that the drug so seized is a mixture of 8.26 grammes containing 5.09 grammes of heroin hydrochloride.

7. The estimated street value of the drugs was $5,567.

8. Further investigation revealed that the defendant was a recipient of CSSA and received about $4,200 per month.

Mitigation

9. It was accepted that the defendant committed the present offence, which occurred on 18 April, while on court bail relating to his latest conviction back in May 2014.  It was submitted that the defendant is a drug abuser for over 20 years and his drug addiction leads to his physical and mental problems.  The drug abuse forced the defendant’s right leg be amputated back in 2011/12.  He has to attend regular follow‑up treatments in hospital and substance abuse clinic.

10. The defendant is a repeat offender, but he pleaded guilty to the present offence, which indicates his genuine remorsefulness.

11. The defendant claimed under caution that the drugs were for his own consumption and he needs the drugs to relieve his pain. It was accepted by the prosecution that 10 per cent to 15 per cent of the drugs so seized can be for the defendant’s own consumption and that would entitle the defendant to have further discount in sentence.

12. Defence counsel tendered two medical reports to confirm the defendant’s medical condition.  The defendant had to undergo revised amputation in December 2012.  During his stay in Lai Chi Kok Remand Centre, the defendant also attended medical appointments at substance abuse clinic, prosthetic and orthotic centre and orthopaedics clinic.  The medical doctor was of the view that the general condition of the defendant was satisfactory.

Sentence

13. The defendant is aged 43, and his education was up to Form 3.  He is a drug addict, and his right leg was amputated.  The defendant has a criminal record since 1987 and had a total of 20 convictions, out of which 10 related to simple possession of dangerous drugs and one to trafficking in a dangerous drug.  The latest conviction of the offence of possession of a dangerous drug, which was committed in January 2014, landed him with a sentence of 6 weeks.  As such, the defendant committed the present offence while on bail.

14. The defendant, being a deep-rooted drug abuser, has no one to blame but himself.  He knows full well that by pleading guilty to the charge, he can get one-third discount in sentence.  I would say this is a wise move, as the evidence against the defendant is very strong.  The defendant, with 77 pellets containing heroin, was lingering outside the methadone centre, and the purpose was obvious.  From the photo (No 16 and 17 of the album), it looks that packaging of all the pellets is of the same colour and size.

15. In normal circumstances, the offence of trafficking in heroin of a quantity up to 10 grammes would attract a starting point from 2 to 5 years.  The present case involves 5.09 grammes of heroin hydrochloride.

16. There are certain aggravating features in the present case, as the defendant is a repeated offender and he committed the present offence while on court bail.  That said, I am prepared to treat him leniently.

17. I will take 2½ years as the starting point.  With his plea, I reduce the sentence to 20 months.

18. I take into account the concession of the prosecution that 10 to 15 per cent of the drugs so seized can be for the defendant’s own consumption.  I have to say that this kind of mitigating factor, namely part of the drugs was for self‑consumption, has become an easy way for traffickers, who were convicted of the offence, to obtain further discount without clear evidential basis.  The packaging of the 77 pellets seems to suggest otherwise.  A simple example is that a rich man with much cash in his wallet can still commit an offence of theft, like shoplifting.

19. In any event, I am prepared to give a further discount in sentence.  I further reduce the sentence by 2 months.

20. To conclude, I sentence the defendant to 18 months’ imprisonment.