HKSAR v. LAW YUI HIN

DCCC223/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 223 OF 2012

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Reasons for Sentence

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1. The defendant is convicted upon his guilty plea of a single charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

2. In sentencing, I have taken into account the whole circumstances of the case, including its nature and the facts, in particular, the nature and quantity of the dangerous drugs involved, the background of the defendant as well as the mitigation put forward on his behalf.

3. The case against the defendant is simple enough.  It was a stop-and-search case.  On the day in question, the defendant was seen walking alone in the vicinity of Yau Ma Tei Market, 20 Kansu Street, Kowloon.  The defendant was seen placing his left hand on the left front pocket of his trousers and looking around furtively. 

4. The defendant was intercepted and a search was conducted on his person.  As a result, a black plastic sheet wrapping a transparent resealable plastic bag containing a total of 40 packets of suspected dangerous drugs was found inside the defendant’s left front trousers pocket.  Defendant was immediately arrested by the police for the offence of “Trafficking in dangerous drugs”.  Under caution, the defendant admitted possession of white powder.  He was found with cash of HK$881.70 and RMB500 together with two mobile phones.

5. According to the findings of the government chemist, the dangerous drugs in question was found to be 40 packets containing a total of 8.96 grammes of a mixture containing 5.23 grammes of heroin hydrochloride.  The estimated retail value of the dangerous drugs was about HK$7,200.

6. The defendant is now aged 56.  He is married and has a son who is 18 years of age who is mentally handicapped and now receiving special education in Hong Kong.  At the time of the offence, the defendant was unemployed.  According to the criminal record, he had appeared in the court for a total of 15 times in relation to 18 convictions of which 6 are “Possession of dangerous drugs” and his last conviction in 2004 was one concerning a similar record of “Trafficking in dangerous drugs” and also “Keeping a divan”. He was sentenced for a total of 18 months in his last conviction.  He was last discharged from the prison in 2005 which means that he managed to stay away from the trouble of the law for the last six years.

7. He was born in the mainland and came to Hong Kong in 1980.  According to the antecedent statement, the defendant already became a drug addict the next year when he came Hong Kong.  In other words, he was already a drug addict for more than 30 years.

8. In mitigation, Mr Wong, his solicitor, prayed in aid the defendant’s full and frank admissions to the offence and said the defendant was very remorseful.  He also said that being a drug addict himself, a very small amount of the quantity of the dangerous drugs found was for his own consumption. Because of the condition of his son, the defendant’s wife was left with the responsibility of taking care of the son and so it was the defendant’s wish that he could receive a lenient sentence so that he can be released to take care of the son as soon as possible. 

9. I have to make it very clear that trafficking in dangerous drug is a very serious offence.  Anyone who was involved in actual trafficking will expect no mercy from the court.  The defendant also had a similar record in the past.  While the court has sympathy for the condition of the son of the defendant, this, however, cannot be a factor for reducing the sentence because the Court of Appeal has repeatedly stated in authorities that family circumstances virtually play no part in the mitigation of serious cases.

10. As regards heroin, the Court of Appeal had laid down the guideline for trafficking in heroin in Lau Tak Ming & Others [1990] 2 HKLR 370.  In that case, the court held that for trafficking in a quantity of less than 10 grammes of heroin, a sentence should be between 2 to 5 years’ imprisonment.

11. Having considered the whole circumstances of the present case, I see no reason to depart from that guideline. 

The defendant had stated that only a very small amount of quantity of heroin was for his own consumption. The Court of Appeal has stated in HKSAR v Wong Suet Hau and another [2002] 1 HKLRD 69 that it was only in cases when a significant amount of dangerous drugs was for the defendant’s own consumption that the court should consider reducing the sentence. Therefore, I would not reduce the sentence on the ground that a small amount of the dangerous drug is for defendant’s own consumption.

12. Applying the guideline in the context of the present case, a starting point of 3½ years is appropriate.  After giving him the one-third discount to reflect his guilty plea, the sentence is one of 28 months’ imprisonment.