HKSAR v. HO KWOK HUNG

DCCC767/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 767 OF 2011

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one offence of trafficking in a dangerous drug, the particulars being that it occurred on 25 May this year in Nathan Road in Kowloon, the defendant trafficking in a mixture of drugs containing 13.66 grammes of a mixture containing 10.18 grammes of heroin.

2.  The defendant has accepted the Summary of Facts presented by the prosecution and I have convicted him of that offence.  Those facts show that on the evening of 25 May 2011 an anti-dangerous drug operation was being conducted by police in the vicinity of Nathan Road and Dundas Street in Mongkok.  Around 2158 hours the defendant was seen at the location.  He was stopped by police officers.  He was taken to the 1st Floor of No. 575A Nathan Road for the purpose of a search.  On search a packet of dangerous drugs, produced as Exhibit P1, was found hidden in the middle of the waistband of his underpants. He was arrested and cautioned.  He said, “I carry the ‘sai chai’ for number 4, for someone.  I have no job so I do this.” 

3.  The defendant was subsequently interviewed by way of video-recorded interview.  In that he said he had been a goods vehicle driver and his licence was suspended.  He had a lengthy period of unemployment as a result.  Through the introduction of a friend he had agreed to deliver dangerous drugs for others for about 1½ months.  He had completed about 10 deliveries with a reward of $200 per time.  He gave some details as to how those deliveries would be done. Generally he would deliver them to a location and someone else would no doubt pick them up.

4.  There was subsequent analysis by the government chemist and the relevant figure for the purposes of sentencing is that there were 10.18 grammes of heroin hydrochloride, that being valued at $9,357 in the street. 

5.  I have been shown the defendant’s antecedents. He is a 37 year old male.  He received Form 3 education in Hong Kong.  It appears from his record that he has never received a custodial term of sentence.  He is not a drug addict.  He is a married man.  His criminal record shows that he has been fined and placed on probation.  He was placed on probation in 2003 for the possession of Part 1 poison.  Most recently he was convicted of fighting in a public place in 2007. 

6.  The defendant has no previous convictions in respect of possession or trafficking in a dangerous drug.  This would appear to support the defendant’s contention that he is not a drug addict and this is his first involvement with dangerous drugs. 

7.  The defendant has put forward mitigation and he is currently married to a lady who has come here from Mainland China on a one-way permit.  He has a step-daughter who is still on the mainland.  The commission of this offence will no doubt lead to his wife being very isolated in Hong Kong. 

8.  The defendant’s employment history shows that he has worked in the past at a driving school.  In his admissions he said he was a goods vehicle driver at some point.  I have a letter from his previous employer at the driving school who speaks well of him.  It is very unfortunate that the defendant, a man with only very minor previous convictions and no involvement in drugs, has involved himself in this way in the trafficking of dangerous drugs.  On the face of what I have before me it appears to be completely out of character.  It appears to have arisen from a misguided attempt to continue to earn a living.  I am told the defendant regrets his actions and is remorseful. This can be seen that the defendant had made a full confession almost immediately upon arrest. 

9.  The defendant has pleaded guilty, accepted the facts and seems prepared to shoulder the responsibility of this matter.  As counsel has pointed out that in terms of sentencing the court is of a closely confined in how they can approach cases such as this.  There are clear guidelines which can only be departed from in exceptional circumstances.  The relevant guideline for sentencing comes from the case of Lau Tak Ming and, of course, referring to the trafficking in certain quantities of drugs undoubtedly the defendant has admitted to trafficking, pure trafficking in those drugs.  The operative relevant quantity is the 10 grammes of heroin hydrochloride which on the band in the authority suggests a starting point of 5 years’ imprisonment.  I can see no reason in this case to depart from that starting point.  I will take that as a starting point.  That is 60 months’ imprisonment. 

10.  The defendant is, as I have said, remorseful. He has shouldered his responsibility.  He is entitled to the full one-third discount from that sentence.  That leaves to a sentence of 40 months’ imprisonment.  That is the sentence that I will impose.