HKSAR v. LO CHUN PANG

DCCC 104/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 104 OF 2013

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Reasons for Sentence

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

2. The facts of the case are as follows.  On 12 November 2012, the defendant was seen outside a methadone clinic in Yau Ma Tei.  He was acting suspiciously which led a police officer to stop and search him.  Exhibits E1 and 2 were found in his trouser pocket. They consisted of 13 pellets of heroin wrapped in white plastic and 8 pellets of heroin wrapped in red plastic.  The defendant was then arrested for trafficking dangerous drugs.

3. The value of all the drugs found on his person and in his person was HK$4,616.

4. The defendant was also found to have cash of $2,280 on him.

5. He admitted to the police that he had bought the heroin for $2,500 for his own consumption.  At the same time, he told the police that he was dependent on CSSA and that the $2,280 found on him was his CSSA payment.  I find it hard to believe that he would have the money to buy heroin in bulk which would be reflected in the fact he has pleaded guilty today to trafficking.

6. Two days later, a Correctional Services Department officer found two more pellets of heroin in his excrement at Lai Chi Kok Reception Centre.  That quantity of dangerous drugs was added to the sole charge.

7. Defendant is 32 years old and not a man of clear record.  He has many previous convictions, of which five relate to possession of dangerous drugs and five relate to trafficking dangerous drugs.  Those trafficking convictions occurred in 2004, 2007, 2009 and, lastly, 2011.  The last conviction for trafficking dangerous drugs was in June 2011 where in the District Court he was sentenced to 28 months’ imprisonment after a plea.  I have seen a transcript of that sentence and the purity of the heroin involved was 5.88 grammes.

8. From the antecedent, I can see that two months after defendant was released from prison for that District Court case, he was arrested again for trafficking dangerous drugs.  Only two months. 

9. Defence counsel has mitigated for the defendant as best as he can, and I have a letter of mitigation from the defendant himself.  His best mitigation today is his plea of guilty.  Obviously, the quantity of dangerous drugs is relevant but the court will also look to see if there are any aggravating factors.  And here, the defendant is convicted for the sixth time for trafficking dangerous drugs.  Moreover, he was arrested for this offence very soon after his release from prison.  These offences are very serious and the defendant is clearly not deterred from selling dangerous drugs despite his previous periods of incarceration.

10. I am well aware that a defendant should not be sentenced twice for the same offence, but the fact of repetitive offending of a similar offence may warrant the aggravation of a sentence.  I have referred myself to the authority of HKSAR v Chan Pui Chi [1999] 2 HKLR 830 which held that a starting point may be increased in this situation.  The court does have a duty to protect the public from drug dealers who keep selling dangerous drugs on the street without shame.

11. Prosecution counsel has referred me to paragraph 32 of HKSAR v Ng Kwok Fai HKMA726 of 2010 where the late Honourable Mr Justice Mackintosh added a very succinct postscript.  I have taken that into account. 

12. According to the authority of R v Lau Tak Ming [1990] HKLR 370, the guidelines set out a tariff of between 2 to 5 years’ imprisonment where up to 10 grammes of heroin is trafficked.  Normally, a 3.25 grammes of heroin would attract approximately a 2-to-2-and-a-half-year-term-of-imprisonment starting point.  But I will not take that lower starting point because of the aggravating factor that exists here.  I find it time the defendant is made aware that persistent offending by trafficking dangerous drugs will only attract a higher-than-usual starting point.

13. Defendant, please stand up.  Accordingly, I find a starting point of 3 years and 3 months, that is 39 months, appropriate. Defendant is entitled to a discount of 13 months for his plea of guilty. Accordingly, the defendant is sentenced to 26 months’ imprisonment.