HKSAR v. LE VAN QUY ALSO KNOWN AS LAI MAN KWAI

DCCC 78/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 78 OF 2014

____________

____________

REASONS FOR SENTENCE

1.  Le Van Quy you have pleaded guilty to two charges of trafficking in a total of 30.68 grammes of heroin and 1.38 grammes of herbal cannabis, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134 and one charge of possession of a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Chapter 177.

2.  In summary around 9.50 p.m. on the 1 November 2013 the police spotted you acting furtively at Chung Wui Street in Tai Kok Tsui.    The police followed you into Chung Mei Building and eventually intercepted you outside Flat 28 on the 6/F. 

3.  The police found from the right front pocket of your shorts a plastic bag containing 7.96 grammes of heroin (charge 1).  The police then entered Room B of Flat 28 where they found on a table in the living room a bowl containing two plastic bags.  One bag contained 22.72 grammes of heroin and the other 1.38 grammes of herbal cannabis (charge 2).  Next to the bowl the police also found 95 empty transparent re-sealable plastic bags.  Under caution you said the drugs were for your own consumption.

4.  Also found in the room was a forged Hong Kong identity card in the name of another Vietnamese person Bui Quang Hiep.  In a video interview you said that you paid $800 for the forged card so you could rent a room for leasing to Vietnamese tourists (charge 3).

5.  In passing sentence I have carefully considered everything said on your behalf by Mr Lamincluding that your mother is not in good health and that you wish to return to Vietnam to visit her.   

6.  In R v Lau Tak Ming[1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years imprisonment and where the quantity of narcotic is between 10 and 50 grammes sentence falls within the range of 5-8 years.

7.  I am satisfied that the appropriate starting point after trial for 7.96 grammes of heroin is 4 years and 6 months imprisonment and for 22.72 grammes of heroin is 6 years imprisonment.  The heroin having been found at the same time I am satisfied that an overall starting point of 6 years and 6 months imprisonment is appropriate for the combined amount of 30.68 grammes of heroin.  I am further satisfied that the small quantity of herbal cannabis does not add to the overall criminality of the trafficking charges whereby the starting point should be increased.

8.  In Lau Tak Mingthe Court of Appeal stated that in determining sentence a court may properly take into account any previous history of narcotic offences.  You have a long criminal record including four convictions for possession of drugs and one for trafficking being the last conviction in 2009 when you were sentenced to 16 months imprisonment in the Kowloon City Magistracy.  You were released from prison in December 2009 and managed to remain out of trouble for almost 4 years before committing the present offences.  In the circumstances I do not increase the starting points by reason of the previous convictions.

Own use

9.  Today I am told the heroin was for sale and only a small amount was for your own use.  Mr Lam explains that you would smoke two cigarettes of heroin per day which would cost $700 per week.  Taking into account that you have convictions for possession of drugs in 2001, 2003 and 2007 and have been to the DATC in 2001 and 2003, albeit all are prior to the trafficking conviction, I am prepared to accept that some of the heroin may have been for your own use.

10.  In deciding how much weight should be attached to the fact some of the drugs may have been for your own use I have considered the decision in HKSAR v. Wong Suet Hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34.  In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 the Court of Appeal held that depending on the individual circumstances the discount for own use should be between 10% and 25% of the basic starting point.

11.  Taking into account the quantity of heroin; that you have a previous conviction for trafficking; possession of drugs carries a sentence in any event; and the latent risk factor, I am satisfied the starting points should be reduced by 9 months imprisonment to 3 years and 9 months and 5 years and 3 months imprisonment respectively with the overall starting point reduced to 5 years and 9 months imprisonment.

12.  Giving you full credit for you pleas of guilty reduces the sentences to 2 years and 6 months and 3 years and 6 months respectively with the overall sentence reduced to 3 years and 10 months imprisonment.

13.  You are convicted and sentenced to 2 years and 6 months imprisonment on charge 1 and 3 years and 6 months imprisonment on charge 2 with 1 year and 4 months imprisonment to run consecutive to charge 1 and 2 years and 2 months imprisonment to run concurrent to charge 1.

Possession of a forged identity card

14.  In HKSAR v Li Chang Li [2005] 1 HKLRD 864 the Court of Appeal said that in the absence of special mitigating factorsthe sentence on a plea of guilty for possession should ordinarily be 12 months imprisonment, irrespective of whether the offender was lawfully staying in Hong Kong.  The guideline was set down to act as a deterrent against illegal working.

15.  Where the offender is a permanent resident in Hong Kong and possesses a forged identity card for a purpose other than illegal working depending on the circumstances a lower sentence may be appropriate.  An analysis of the cases, most of which are in Chinese, can be found in HKSAR v Zhen Yinfang HCMA 580/2011.

16.  I am prepared to accept you intended to use the forged card so that the Social Welfare would not find out you were renting premises and thereby receiving rent which may affect your welfare payments.  In these circumstances I am satisfied a starting point of 15 months imprisonment is appropriate.  Giving you full credit for you plea of guilty you are convicted and sentenced to 10 months imprisonment.

17.  The offence being entirely separate and distinct from the drug charges a consecutive sentence is appropriate.  This makes a total sentence to be served by you of 4 years and 8 months imprisonment which I am satisfied properly reflects your criminality on the three charges.