HKSAR v. HO PO SANG

DCCC4/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 4 OF 2012

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of trafficking in a dangerous drug, namely 14 grammes of a mixture containing 9.09 grammes of heroin hydrochloride.

2.  In summary, at around midnight on 5 November 2011, PC10083 stopped and searched the defendant at Man Wai Street, Yau Ma Tei. Upon search, a packet consisting of plastic wrappings containing the dangerous drug particularised in the charge was found on the defendant.

3.  Under caution, the defendant admitted that he carried the drug for Ah Shing for a reward of $300.  Having collected the drugs in a litter bin in a building near Yau Ma Tei, he intended to carry it to the park in Hoi Lai Estate and leave it next to a flower bed as instructed by Ah Shing.

4.  The defendant is aged 57, single.  He only received primary education.  When he committed the present offence, he was a restaurant worker earning about $8,000 a month.  He has 13 previous convictions, four of which are related to trafficking of drugs and four related to possession of drugs. 

5.  In mitigation, the defendant’s solicitor said the defendant was approached by Ah Shing outside a methadone treatment centre when the defendant had finished his methadone treatment.  The defendant committed the offence out of greed and stupidity as he only received a reward of $300.

6.  Relying on the guideline in Lau Tak Ming, the defendant’s solicitor submits that the starting point should not be more than 4 years.  He asks the court not to treat the defendant as a persistent offender as the defendant’s last similar conviction was back in 2003. 

Sentence

7.  Defendant, you should know very well that trafficking in dangerous drugs is a very serious offence.  The Court of Appeal laid down sentencing guidelines for trafficking in heroin in R v Lau Tak Ming.  The starting point for trafficking in heroin up to 10 grammes is 2 to 5 years’ imprisonment.  Your lawyer suggests that the starting point in the present case should not be more than 4 years. 

8.  The Court of Appeal in HKSAR v Cheung Wai Heung, CACC258/2002, and SJ v Yeung Chung, CAAR3/2002, stated that for about 8 grammes of heroin the appropriate starting point should be 4 years. 

9.  The drug in this case is 9.09 grammes.  In my view, a starting point higher than 4 years but less than 5 years is justified.  I therefore adopt 4½ years as the initial starting point accordingly. 

10.  No doubt you have a bad criminal record, four for trafficking in dangerous drugs and four for possession of drugs. 

11.  In HKSAR v Chan Pui Chi, the Court of Appeal expressly stated that persistent offender could be an aggravating factor.  However, it should also be noted that your last conviction relating to dangerous drugs was back in 2003, almost 9 years ago.  You were last discharged from Hei Ling Chau in January 2004, so on the record there is a lapse of drug activities for almost 8 years, and for that, in my view, credit should be given to you. 

12.  Having considered all the circumstances, I am not going to treat you as a persistent offender and to increase the starting point.  Your stupidity as your lawyer described you of committing a serious crime only for a small reward is not mitigating factor at all.  I cannot see any mitigating factors apart from your plea of guilty for which you will get full credit and one-third reduction of the sentence.  

13.  So, defendant, you will go to prison for 3 years.