HKSAR v. LAM SIU YEUNG

DCCC108/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 108 OF 2011

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Reasons for Sentence

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1.  The Defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.  The facts are simple. In the morning of 22 November 2010, while the police were conducting an operation at 1/Floor, Nos. 20-22 Chik Fuk Street, Tai Wai, the Defendant was seen returning to his home at Flat B. The Defendant was stopped and searched. As a result, a total of 81 pellets of heroin, that is a total of 14.55 grammes of a mixture containing 10.1 grammes of heroin hydrochloride, were found inside the right front pocket of the Defendant’s trousers. The estimated street value of the drug was about HK$10,000. Upon enquiry, the Defendant stated that he was delivering the drug for others and he would be given a reward of HK$450. He made similar admissions in the subsequent video-recorded interview.

3.  The Defendant is aged 36 and has got two previous convictions for possession of a dangerous drug in respect of both of which he was given a fine. On 17 February 2010, he was bound-over in the magistrates’ court to keep the peace and be of good behavior in relation to an incident of criminal intimidation. In other words, the present offence was committed by the Defendant while the binding-over order was still in force.

4.  The Defendant was born in the Mainland and came to Hong Kong at the age of 22 to re-unite with his parents. The Defendant is married with two children. His family members are residing in the Mainland but are wholly dependent on him financially. The Defendant worked as a casual construction/decoration worker before, earning about HK$10,000 per month. It was said that at the time of the offence, the Defendant had been unemployed for about 2 months. As he was in need of money to support himself and his family, he then succumbed to his friend’s suggestion of delivering drugs for others in order to earn some quick money. In mitigation, it was said that the Defendant made frank admissions at scene and fully co-operated with the police. He pleaded guilty at the earliest opportunity. A lenient sentence is asked for.

5.  In R v Lau Tak Ming & Others [1990] 2 HKLR 370, the Court of Appeal laid down the tariffs for trafficking in heroin. For trafficking between 10 and 50 grammes of narcotic, a term of imprisonment of 5 to 8 years is called for. In the instant case, the narcotic involved was 10.1 grammes of heroin hydrochloride. For this quantity, I consider a starting point of 5 years to be appropriate.

6.  I have carefully considered the matters put forth in mitigation and although I understand the plight the Defendant’s family will be in upon the Defendant being imprisoned, I do not see such as a strong mitigating factor warranting any additional reduction in sentence. The Defendant, however, will get a one-third reduction for his plea.

7.  60 months reduced by one-third is 40 months. The Defendant is therefore to serve a term of 40 months’ imprisonment for this charge.

8.  Insofar as the binding-over order is concerned, I am not going to refer the matter back to the magistrates’ court for enforcement for the following reasons. Firstly, at the time of his arrest, the Defendant only had about HK$20 with him. This morning, Mr. Ip acting for the Defendant also told the court that the Defendant committed the present offence because he was in need of money. In view of all these and that the present offence is of a different nature from that of which the Defendant was bound-over, and also that the Defendant is now facing a relatively long term of imprisonment, I do not consider it necessary to have the binding-over order further dealt with.