HKSAR v. TO LAI KUEN

DCCC 622/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 622 OF 2015

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to a charge of “Trafficking in dangerous drugs”[1], contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, the narcotics contents being 6.64 grammes of mixture containing 5 grammes of heroin hydrochloride; and 2 charges of simple possession of dangerous drugs, which are also heroin hydrochloride[2].

Facts of the case

2.  The summary of facts, as amended on 8 September 2015 can be briefly stated as these:  Upon a stop and search operation at the junction between Johnston Road and Tai Wo Street, in Wanchai on 4 May 2015 evening, police officers found a re-sealable plastic bag containing 46 packets of heroin hydrochloride (subject matter of Charge [1]) from the waistband of the pants that the defendant was wearing at the time. The defendant admitted under caution that she just picked those drugs up from a staircase in a building nearby.  Upon further body search, the defendant was found to be in possession of, amongst other things, two notebooks where price, number of packets, names and telephone numbers were written down.  The defendant now admits that she possessed all those drugs for the purpose of trafficking.

3.  On 6 May 2015, when the defendant was being remanded in Tai Lam Detention Centre, she excreted a packet containing the subject matter of Charge [2].  She admitted under caution that it was heroin hydrochloride.  Later on 8 May 2015, she excreted four more packets of heroin hydrochloride (subject matter of Charge [3]).  She again admitted that they were heroin hydrochloride, adding that all five packets came from the same source, and she swallowed them before being intercepted by the police.

4.  The street value of all the heroin hydrochloride seized was about HK$5,005.  The defendant was receiving CSSA amounting HK$2,000 odd each month at the time.

Mitigation

5.  At the outset, defence solicitor sought to resile from the defendant’s agreement to the summary of facts that she possessed ALL the drugs for Charge [1] for the purpose of trafficking.  Rather, the defendant treated half of those drugs for self-consumption.  In that regard, the prosecution held firm to its ground, adding that if necessary the court might consider holding a Newton inquiry. After a brief adjournment, defence solicitor withdrew that request.  I then asked the defendant direct to confirm her position, to which she answered in the affirmative.

6.  The defendant has 49 previous convictions, 7 of which relate to simple possession of dangerous drugs and one trafficking.  Defence solicitor told the court that the defendant’s problems stemmed from her drug habit.  He urged the court to take into account her plea of guilty and totality principle in sentencing.

Sentence

7.  I have carefully considered all the circumstances of the case, including both mitigating and aggravating factors.

8.  First of all, I accept defence solicitor’s submissions that I need to consider totality principle in sentencing.  Although the defendant has been convicted of 3 charges, all the drugs essentially came from the same source.  I will therefore pass a concurrent sentence for all three charges.  Furthermore, I also accept the mitigation that the defendant is entitled to the usual full one-third discount for her plea.   

9.  As to the starting point for Charge [1], it should be 3 years imprisonment.  However, there is an aggravating feature in this case: the defendant was released from prison in February this year after serving the sentence for her first drug trafficking conviction.  In less than 3 months’ time, she committed the present offences. The sentence imposed clearly had no deterrent effect on her.  In this respect, I consider appropriate to make an upward adjustment of 6 months, making it a total of 3 and a half years, ie 42 months.  The sentence for Charge [1], after deduction of one-third, would be 28 months imprisonment.

10.  For Charges [2] and [3], I take a starting point of 12 months for each, and then reduce it to 8 months.  All the sentences are to be served concurrently.

Conclusion

11.  The sentences for each charge are as follows:-

- Charge [1]: 28 months imprisonment

- Charge [2]: 8 months

- Charge [3]: 8 months

All concurrent.