|
HCCC 434/2014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 434 OF 2014
-----------------
------------------
| Date: |
25 September 2015 at 10.14 am |
| Present: |
Mr Andrew Raffell, on fiat, for HKSAR |
|
Mr John McNamara, instructed by King & Co, assigned by
the Legal Aid Department, for the accused |
| Offence: |
(1) Trafficking in dangerous drugs (販運危險藥物) |
|
(2) Possession of a dangerous drug (管有危險藥物) |
---------------------------------
Transcript of the Audio Recording
of the Sentence in the above Case
---------------------------------
COURT: Defendant, Mr Lo King-ming, pleads guilty to one count
of trafficking in dangerous drugs and one count of possession
of a dangerous drug which are, respectively, Count 1 and Count 2
in the indictment.
Count 1 is contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The particulars of offence are that the defendant on 11 April 2014 at Lok Ma Chau Spur Line Control Point, Lok Ma Chau, New Territories in Hong Kong, unlawfully trafficked in dangerous drugs, namely 0.68 kilogramme of a mixture containing 0.41 kilogramme of heroin hydrochloride and 26.21 grammes of 6‑monoacetylmorphine hydrochloride.
Count 2 is contrary to section 8(1)(a) and (2) of the same ordinance. The particulars of offence are that on the same date and at the same location of Count 1, the defendant had in his possession a dangerous drug, namely 2.87 grammes of a crystalline solid containing 2.83 grammes of methamphetamine hydrochloride.
Facts admitted
On 11 April 2014 at 9.32 pm, the defendant was intercepted by a Customs officer at the Customs Arrival Hall of Lok Ma Chau Control Point. Two packages containing the dangerous drugs set out in the two counts in the indictment were found on the person of the defendant. When asked, the defendant explained, “Ah Sir, they are bad things, dangerous drugs”.
He was arrested and cautioned for the offence of possession of a dangerous drug.
The dangerous drugs set out in Count 2, namely 2.87 grammes of a crystalline solid containing 2.83 grammes of methamphetamine hydrochloride, commonly known as “Ice”, were found inside a marker pen in one of the trouser pockets of the defendant. Under caution, the defendant said, “Ah Sir, ‘Ice’ for own consumption”.
The dangerous drugs set out in Count 1, namely 0.68 kilogramme of a mixture containing 0.41 kilogramme of heroin hydrochloride, and 26.21 grammes of 6-monoacetylmorphine hydrochloride, were found inside a packet inside the other trouser pocket of the defendant.
Under caution, the defendant said, “I do not know what drug they are. I only know they are drugs. It was someone who said I would be given $1,000. I was asked to bring them through the Customs to Hong Kong and to give them back to a person who would contact me by phone”.
The defendant agreed to make a controlled delivery of the drugs, but due to operational reasons it was decided not to proceed.
The heroin in Count 1 had an estimated street value of about $459,488.09.
Criminal record
The defendant has 11 previous convictions, including 4 offences of possession of a dangerous drug, and an offence of possession of equipment fit and intended for consumption of a dangerous drug. He was last convicted of an offence of possession of a dangerous drug and 2 other offences, and was sentenced to a total of 6 months imprisonment on 5 December 2010.
Mitigation
The defendant is aged 21, divorced because of his incarceration in the present case. He has a daughter from his first wife who is now an adult but unemployed. The defendant was a taxi driver working one to two days a week earning about $5,000 a month. He has been addicted to “Ice” for a number of years and he became involved in the present case because of financial implications.
Counsel for the defendant submits to the court a mitigation letter written by the defendant. The defendant says in the letter that he loses his marriage because of the present case for which he feels deeply regretful. He is remorseful and asks for the leniency of the court so that he can resume the role of a good father to his daughter and a filial son to his parents who have never given him up and remain supportive of him.
Counsel for the defence emphasises that the defendant pleaded guilty at the first opportunity and was cooperative with the Customs and Excise officers.
The defendant agreed to carry out controlled delivery of the dangerous drugs which was not carried out due to no fault of the defendant. Counsel for the defence urges the court to adopt a starting point of 15 years’ imprisonment.
Sentence
The dangerous drugs involved in Count 1 are heroin hydrochloride and 6-monoacetylmorphine hydrochloride. The latter is in fact a metabolite of the former and is more potent.
According to HKSAR v Kanfune Bashiri Rajabu CACC 493/2012, 6-monoacetylmorphine hydrochloride has no difference in sentencing from heroin hydrochloride. The total amount of dangerous drugs in Count 1 can therefore be treated as 436.21 grammes of heroin hydrochloride.
The Court of Appeal laid down sentencing guidelines for the offence of trafficking in heroin in R v Lau Tak Ming & Ors [1990] 2 HKLR 370. For a quantity of 400 to 600 grammes of heroin hydrochloride, the starting point is 15 to 20 years imprisonment. The starting point for 436.21 grammes of heroin hydrochloride is about 15 years and 11 months imprisonment.
The defendant committed the offence because of economic reasons. This certainly does not constitute a valid ground of mitigation.
On the contrary, there is an aggravating factor in the present case in that the defendant brought the dangerous drug into Hong Kong from China. This necessitates the starting point to be enhanced.
After considering the whole circumstances of the case and the authorities such as HKSAR v Chung Ping Kun CACC 85/2014; and HKSAR v Zhuo Sailin HCCC 431/2013 the court adopts a starting point of 16 years 9 months imprisonment.
Giving credit to the defendant for his plea of guilty and his willingness to help Customs to carry out the controlled delivery of the dangerous drugs, the court sentences him to 10 years 10 months imprisonment for the 1st count.
In Count 2, the defendant possessed 2.83 grammes of “Ice”. According to the case of HKSAR v Mok Cho Tik [2001] HKC 261, for a bona fide user of dangerous drugs who possessed dangerous drugs of an amount which a drug addict would normally possess, the starting point is 12 to 18 months imprisonment.
The defendant is a drug trafficker so there is a high risk that the “Ice” may fall into the hands of others. Taking such latent risk and all other circumstances into consideration, the court adopts a starting point of 15 months imprisonment.
Giving credit to the defendant for his plea of guilty, the court sentences him to 10 months imprisonment for Count 2.
Even if the defendant had trafficked this amount of “Ice”, together with the heroin hydrochloride in Count 1, using the conversion test as explained in HKSAR v Chan Yuk Leong CACC 318/2013, the starting point in Count 1 would have been enhanced by a little bit more than a month. But the court must not lose sight that the defendant is only convicted of possession of the “Ice” in Count 2.
Under such circumstances and having considered the totality principle, the court is of the view that in the interests of justice the sentences of the two counts should run concurrently, and the court so orders.
The defendant is therefore to go to prison for 10 years 10 months.
|