HKSAR v. LO TAK MING

DCCC 680/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 680 OF 2014

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REASONS FOR SENTENCE

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1. The defendant (male) (aged 58 years) came before me this morning and pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The particulars of offence avers that the defendant on 6 June 2014 outside Lockhart Road Market, No 225 Hennessy Road, Wanchai in Hong Kong, unlawfully trafficked in a dangerous drug, namely 9.57 grammes of a mixture containing 5.39 grammes of heroin hydrochloride.

Facts

2. This is a simple stop and search case.  According to the facts, a plainclothes police officer was patrolling in the vicinity of Wanchai in the evening on the date of the offence.  At about 6:28 pm, the defendant was spotted acting furtively at the junction of Fleming Road and Hennessy Road in Wanchai.  The police officer then decided to approach the defendant with a view to conduct enquiry with him.  When the police officer revealed his police identity to the defendant and requested for a search, he simply ignored the police officer and kept saying “In a hurry” and walking away quickly.  The police officer therefore intercepted the defendant and said “Police, don’t move” but the defendant still ignored the police officer and kept pushing away his hand.  Finally the defendant was subdued near Lockhart Road Market.

3. When the police officer was about to search the defendant, he suddenly spat six pellets of plastic-wrapped white solids from his mouth into his palm and asked the police officer for a chance.  It was later confirmed those to be six packets containing a total of 1.07 grammes of a mixture containing 0.64 grammes of heroin hydrochloride.  Upon more thorough search on his body, a hard foreign object was found between the defendant’s thighs.  Upon request, the defendant took the object out from his underpants and the foreign object was found to be a plastic bag containing 50 pellets of plastic wrapped round white solids and later confirmed to be 50 packets containing a total of 8.50 grammes of a mixture containing 4.75 grammes of heroin hydrochloride.

4. Under caution, the defendant once claimed that the drugs were for his own consumption.  In a subsequent video record of interview, defendant said that he purchased altogether the 56 pellets of heroin for the sum of $5,400 to $5,500.  The estimated street value of the total quantity of the drugs in this case was around HK$6,450. 

Criminal records and background of the defendant

5. In the past, between 1972 to 2013, the defendant had appeared in court in no less than 17 occasions and he was convicted altogether for a total of 23 charges involving in particular 8 charges relating to dangerous drugs for which 2 were similar charges of drug trafficking both in 1989 where he was sentenced to 6 years as well as a 1 year imprisonment term.  He had six other convictions relating to simple possession.  Between 2000 to 2012, he has been sentenced in the Magistracy for probation, DATC as well as for period of various terms of imprisonment ranging from 2 months to 12 months.

6. In mitigation, his solicitor, Ms Cheng, informed the court that the defendant is 59 years old.  He was married but is now separated with his wife and he is living with his sister in a public housing estate.  Before his arrest, he used to be a food delivery worker working on a casual basis earning an income of $250 per day.  For the past years, he has been a drug addict and he has been to the DATC a few times, ordered by the court, but regrettably he was unable to deal with his drug addiction and kick the habit completely.  The defendant is feeling very remorseful now and he had pleaded guilty in this case.  Ms Cheng urged the court to give him the full credit and give him the full one-third discount. 

7. Ms Cheng also submitted to court a letter written by the defendant himself.  The defendant expressed deep remorse in this letter and he told the court that he would not go anywhere near the drugs after this case and hope the court can believe in him and be as lenient as possible.  He wants to be more useful member of society and vows that he will kick the habit altogether.

Sentencing considerations

8. Trafficking in dangerous drugs is of course a very serious offence.  Anyone who came to deal with the dangerous drug in this way would be expected to be dealt with by the court severely.  The defendant should have known better because although it is a long time ago, he should still remember that he has been sentenced to an imprisonment term for as long as 7 years back in 1989 in the District Court.  I can well understand why the defendant still came to be convicted for a number of possession of dangerous drugs offences because he was not able to deal with his drug problem but when it comes to drug trafficking, the court normally would not accept any economic reasons for committing a crime like this.  For people like the defendant who for a long time is addicted to the drugs, it is a matter of time that he or she will come to be lured by the drug dealers behind to go down to the path of trafficking in dangerous drugs.  The court sincerely hopes that the defendant was real when he told the court that he have realized his own problem and will deal with his drug problem after serving his time for this offence.

9. The subject matter of dangerous drugs in question is heroin.  The Court of Appeal had laid down clear guideline in the case of R v Lau Tak Ming & Ors [1990] 2 HKLR 370.  According to that case, for a quantity up to 10 grammes of heroin, the starting point of the sentence is 2 to 5 years.  The present case involved, as it were, 5.39 grammes of heroin hydrochloride. According to the guideline, I will adopt 3½ years which is 42 months as a starting point.

10. The defendant pleaded guilty which is the only effective mitigation for which I will give him the customary one-third discount.  As a result, the defendant is sentenced to 28 months’ imprisonment.  I can see there is no other mitigation in this case and that is my order.