HKSAR v. LAI YIM PANG

DCCC 207/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 207 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Summary of Facts

2.  The defendant was stopped and searched by the police.  In his sling bag, a transparent resealable bag containing 35 packets containing 5.55 grammes of a mixture containing 4.11 grammes of heroin hydrochloride, 26 foil packs containing a total of 98 tablets containing 1.51 grammes of midazolam were found.  The average weight of midazolam was 0.015 gramme per tablet.

3.  In a record of interview under caution: -

(a) He bought the heroin at $4,000 from an unknown male.

(b) 60 tablets of midazolam were prescribed by his doctor.

(c) He had been a drug addict for over 20 years.

(d) He spent $700 to $800 a day for injection of heroin.

(e) $2,036 and two mobile phones seized belong to him.

(f) He received $2,355 per month from CSSA.

4.  The estimated street value of the heroin was about $3,901.65 and $5,292 for midazolam.

5.  There was a medical certificate from Dr. Pei who prescribed 60 tablets of midazolam for the defendant.

Previous convictions

6.  The defendant has 30 previous convictions.  At the time of offence, he had 11 previous relating to drug offences, except one record of possession of equipment fit and intended for smoking, injecting, inhaling dangerous drugs.  The others were all possession of dangerous drugs. Apart from one conviction of section 33 of possession of offensive weapon, the reminder of the offences can be categorised into three groups: the copyright offences, 12 previous of possession of obscene articles for publication and 9 previous of theft.  In February this year, he was further convicted for an offence of possession of dangerous drugs and was sentenced to 6 months’ imprisonment.

7.  In the present case, the offence date was in December 2016.  He has no record of trafficking in dangerous drugs.

Mitigation

8.  He is 40 years old.  His wife is now living in China.  They have been separated since 2012.  The defendant had been unemployed at the time of the offence.  He had a history of drug addiction for over 20 years.

Sentence

9.  The law for trafficking dangerous drugs is well settled.  For heroin, the sentencing guideline is Lau Tak Ming [1990] 2 HKLR 370.  In the present offence, the quantity was 4.11 grammes of heroin.  It falls into the sentencing bracket of 2 to 5 years.  Apart from heroin, there were also 0.5 gramme of midazolam. 

10.  The defence referred me to two cases:-  

(1) One, HKSAR v Wong Kam Wo, CACC 469/2000.

(2) HKSAR v Amnuaychoke Nopporn, CACC 441/2001.

11.  In both cases, the applicants were convicted of trafficking of dangerous drugs which consisted of both heroin and midazolam. They also received additional sentence for trafficking in midazolam.

12.  In the judgment of Wong Kam Wo, the court held that trafficking in midazolam is far less serious than trafficking in heroin.  It is most unlikely that the sentence would have been affected and it was inappropriate for the defendant to receive additional sentence merely because midazolam was a drug of a different nature to heroin. 

13.  To this extent, I agree with the defence that the quantity of 0.58 gramme of midazolam has a very insignificant effect on the overall sentence and I am prepared to sentence the defendant by taking the 4.11 grammes of heroin into account.

14.  In passing sentence, I bear in mind all the mitigating factors before me.  The only valuable mitigating factor that has any bearing on the sentence is the defendant’s guilty plea. 

15.  I adopt a starting point of 3 years and reduce it to 2 years to reflect his guilty plea.