HKSAR v. LO KIM SANG

DCCC 389/2018

[2018] HKDC1134

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 389 OF 2018

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of trafficking in 9.69 grammes of a mixture containing 8.00 grammes of heroin, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.  In summary at around 7:03 a.m. on 24 January this year the police saw the defendant acting furtively in the Nam Cheong Street Sitting-out Area.  When the defendant saw the police he turned around and walked away. 

3.  PC 14768 intercepted the defendant and found in a pocket of the defendant’s overcoat a total of thirty-two packets containing the heroin.   PC 14768 also found one mobile phone and $4,236.20 cash.

4.  Under caution and in a subsequent video recorded interview the defendant admitted, inter alia, that he was helping others to sell white powder because he was unemployed; he received $1,000-$1,500 per day; $1,350 found on him was from the sale of heroin and the rest of the money was his savings.    

Mitigation

5.  In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Li, including that the defendant is a long term drug addict and that he made a full and frank confession to the police.    

Starting point

6.  In R v Lau Tak Ming[2]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.  I am satisfied that the appropriate starting point after trial for 8.00 grammes of heroin is 4 years and 4 months’ imprisonment. 

Aggravating features

7.  I am satisfied there are two aggravating features justifying an increase in the starting point. 

Persistent offender

8.  In Lau Tak Ming the Court of Appeal stated that in determining sentence a court may properly take into account any previous history of narcotic offences.  The defendant has a long criminal record including ten convictions for trafficking. 

9.  The defendant was last convicted of trafficking on 13 June 2016 when he was sentenced to 28 months’ imprisonment.  The defendant was released from prison on 4 September 2017[3]. The present offence was committed just over four months later. 

10.  In the circumstances I enhance the starting point by 8 months to 5 years’ imprisonment. 

Offence committed whilst on bail

11.  On 15 March this year the defendant was sentenced to 6 months’ imprisonment for an offence of possession of dangerous drugs.  Ms Choi informs the court that the defendant was arrested for that offence on 14 January this year ten days prior to the commission of the present offence[4].

12.  The defendant has now served that sentence.  Taking into account that I have already enhanced the sentence for the defendant’s persistent offending and that if the defendant had been sentenced at the same time for both offences a wholly consecutive sentence may not have been ordered, I do not further enhance the sentence by reason of the defendant committing the present offence whilst on bail.

13.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 4 months’ imprisonment.