HKSAR v. SZETO KAM-HO (also known as Szeto Kam hon)

DCCC 649/2019

[2019] HKDC 1698

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 649 OF 2019

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  Mr Szeto has pleaded guilty before me to a single charge of trafficking in a dangerous drug.

2.  He is a man aged 70, which qualifies him certainly as elderly, and a long-term drug addict, and lived in the milieu of drug addiction for the best part of his life. 

3.  He comes before the court today charged with a single offence of trafficking in a relatively small amount of heroin hydrochloride, the narcotic content being 3.57 grammes of that drug. 

4.  He was apprehended on 23rd May this year in the evening, carrying a pink duffle bag in Sham Shui Po.  There was observed to be a stuffed doll in the bag and the defendant was seen placing an object into the head of the stuffed doll, then putting it back in his duffle bag.  He was intercepted and the drugs were found inside the head of the stuffed doll.  He also had a mobile phone and some cash of $1,800.

5.  The drugs, in fact, were valued at 4,301 as a street value.

6.  The explanation he gave is that he was unemployed, he is on CSSA, and he is a heroin addict.  He did this because he was asked to do it.  He was acting as what I think we could describe as a street-level courier.  He was given the duffle bag and he was to hand it to someone else, paid $500 for doing that.

7.  The defendant’s background, as I said, is that he is 70 years old, no longer working, presumably due to age, been a drug addict, he says, since 1989.  There is no reason to think that is untrue. 

8.  His criminal record shows lengthy criminal involvement, with drug convictions dating back to 1974, some 15 years before he says he became an addict, but a total of seven previous convictions for possession of dangerous drugs, two convictions in the 1990s for possessing drugs for the purpose of unlawful trafficking, dealt with in the magistrates’ court, with a sentence of Drug Addiction Treatment Centre and a sentence of imprisonment. 

9.  The rest of the defendant’s criminal record shows petty theft.  He is certainly old enough to be convicted of larceny, but otherwise minor convictions and short sentences of imprisonment ranging up to 15 months for one drug offence and, as I said, 2 years for the trafficking case.

10.  The defendant’s mitigation is that he is elderly, that he has pleaded guilty and assisted the police.  He has already said he is living in a cubicle, shares with a friend.  He is registered as a tenant there.  He tells me he has a dog that is being cared for by his friend and he would worry that if he had a lengthy sentence of imprisonment he might not get out, that some harm may come to his animal.

11.  Now, turning to the approach to sentence, the starting point for sentence in these kind of cases is determined by guidelines which have been in place for many years, and the guidelines centre on the quantity of drug, and the quantity of narcotic here puts this within the range of a 2 to 5 years’ imprisonment guideline.  The upper limit of that relates to 10 grammes of narcotic. 

12.  The figure for this defendant being 3.57 is less than half of the upper limit. 

13.  What I will do is take a starting point, in relation to the quantity of narcotic and the other mitigating factors put forward, at 30 months’ imprisonment.

14.  There is an aggravating factor.  Although he is of some age, I notice the defendant has been a trafficker in the past.  I do not know whether he has always been one since or he has just resumed his career at the age of 70, but he is convicted again and I must take that into account as an aggravating factor.

15.  The convictions are a long time ago.  What I shall do is add 3 months to represent that aggravating factor.

16.  My starting point for sentence then is 33 months’ imprisonment.  

17.  I will give the defendant the benefit of a full one-third discount, which he is entitled to, which leads to a sentence of 22 months’ imprisonment.