HKSAR v. LUI WAI MAN

DCCC 564/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 564 OF 2009

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Reasons for Sentence

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The charges and facts

1.  The Defendant pleads guilty to trafficking in a dangerous drug (1^st Charge) and possession of a dangerous drug (2^nd Charge).

2.  At 2:48 a.m. on 26 March 2009, the police were conducting an anti-dangerous-drug operation in Sham Shui Po when the Defendant came out from Lai Heung Building located at No. 233, Lai Chi Kok Road ( the Building ). When they were about to intercept him, he turned around to flee. After a short pursuit he was stopped on 1/F of the Building.

3.  He was holding in his right hand a transparent bag containing 80 packets of substance (later analysed to be 16.84 grammes of a mixture containing 14.88 grammes of heroin). After caution, he said he was delivering the drug to Nam Cheong Street Park to earn a few hundred dollars. During a videotaped interview, he said he was lured to deliver the drug for a reward of $500 as he did not have money for meals. These facts constituted the 1^st Charge.

4.  Two days later, on 28 March 2009, when he was being remanded at Lai Chi Kok Reception Centre, he was interviewed by an officer of the Correctional Services Department. He said he had dangerous drug in his body. At about 12:10 p.m. on the same day he excreted a pellet of dangerous drug (later analysed to be 0.16 gramme of a mixture containing heroin hydrochloride).

5.  The police arrived and arrested him. After caution, he said the pellet belonged to him and it contained heroin. It was No. 4 heroin. He had bought it for $150 from Ah Shing in Nam Cheong Street Park on the early morning of 26 March 2009. He swallowed the pellet when he was intercepted by the police. These facts constituted the 2^ndCharge.

Mitigation put forward

6.  The Defendant is now 43 years of age. He has 1 previous conviction for trafficking and 3 for simple possession. He has separated with his wife. His parents have passed away. He is educated up to F. 2 level. He has done various unskilled jobs. He is presently on public assistance.

7.  His solicitor accepts that the guidelines in The Queen v Lau Tak Ming [1990] 2 HKLR 370 is applicable. He refers to the case of HKSAR v Luk Chun Man CACC 146/2006 for the proposition that the number of packets shall not be an aggravating factor in sentencing. He also draws an analogy between the case of ؄e ^ V DCCC 907/ 2008 with our present case.

The Queen v Lau Tak Ming [1990] 2 HKLR 370

8.  The Court of Appeal has laid down guidelines for traffickers in heroin as follows:

(1) up to 10 grammes of narcotice: 2 to 5 years imprisonment;

(2) between 10 grammes and 50 grammes: 5 to 8 years;

(3) between 50 grammes and 200 grammes: 8 to 12 years;

(4) between 200 grammes and 400 grammes: 12 to 15 years;

(5) between 400 grammes and 600 grammes: 15 to 20 years;

(6) over 600 grammes: 20 years to life imprisonment.

9.  It has gone on to suggest that within the suggested bands, the sentencing judge might properly take into account the following factors:

(1) The profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of the dangerous drugs involved;

(2) The number of packets;

(3) The type of mixture containing the narcotic;

(4) The degree of involvement of the offender; and

(5) His previous history of narcotic offences and matters of mitigation which may have been advanced on his behalf.

(My emphasis in italics)

HKSAR v Luk Chun Man CACC 146/2006

10.  The applicant was given a sentence based on a starting point of 5 ½ years imprisonment. A notional starting point of 5 years was increased by 6 months to take into account the number of packets, 20 in total, that he was delivering to a flowerbed in Wong Tai Sin for a reward. Whilst he admitted that the bag contained heroin, there was no evidence that he knew it was in the form of a number of packets. The Court of Appeal regarded the 6 months thus aggravated to be unjustified. A starting point of 5 years was to be taken, subject to the applicant s mitigating factors for actual reduction.

11.  In our present case, the defence accepts that he knew there were many packets of drug, albeit not their exact number. The two cases are different.

香港特別行政區 訴 徐玉生 DCCC 907/ 2008

12.  In that case, the accused was on the way to deliver 200 pellets of heroin to a male in Sin Chui House, Fu Sin Estate, Tai Po when he was intercepted in the vicinity at 8:30 p.m. The narcotic weight was 18.18 grammes in total. The judge took a starting point of 5 years and 3 months.

13.  That case involved more quantity but the destination was to a location in a public housing estate. In our present case, the destination was a public park in Nam Cheong Street.

Sentencing the Defendant

14.  The Defendant was a courier for a reward. He was taking the drug to a public park at 2:48 a.m. where ordinary people would be in bed. The large number of packets pointed to a large circulation to small users. According to Lau Tak Ming (above), the narcotic weight of 14.88 grammes shall be within the band of 5 to 8 years imprisonment. I take 5 years 3 months as the starting point. I reduce it by one-third because of his guilty plea. There are no other mitigating factors. The sentence is 3 years 6 months imprisonment for the 1^st Charge.

15.  He was in possession of a small quantity of heroin. I take a starting point of 9 months. I reduce it by one-third because of his guilty plea. There are no other mitigating factors. The sentence is 6 months imprisonment for the 2^nd Charge.

16.  The two offences did not form a single transaction. They should carry consecutive sentences. However, upon totality considerations I order the sentences to be concurrent.