HKSAR v. MEN WING WAI

DCCC361/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 361 OF 2011

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to three charges of trafficking in a dangerous drug. Those charges are contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

2.  The 1st and 2nd charges were committed on 9 February 2011 at the Yau Ma Tei Community Centre Rest Garden, Shanghai Street, Yaumatei, the 3rd charge but 4th charge on the charge sheet was committed on 11 February at the Isolation Cell at Lai Chi Kok Reception Centre.

3.  On 9 February, police officers mounted an observation post opposite the Yau Ma Tei Community Centre Rest Garden, which I will call ‘the park’.  The weather was fine and dry with sufficient lighting and it was about 1.20 pm.  The operation turned overt at about 3.20 pm.  Whilst the officers were making observation they saw that you, the defendant, enter the garden and sit on a stone stool. 

4.  Between 2.00 pm and 3.00 pm, they saw three males on three different occasions approach you and give you money, and you then took something out of your mouth and passed it to each of the males, who put the same thing in their mouths and left the park hurriedly.

5.  At about 2.55 pm, the officers observed you taking something from your pocket and wrap it in some paper and then throw it into the bush about 3 metres away from you.  When the action turned overt about 30 minutes later, officers found in the bush a cigarette packet wrapped in newspaper containing 24 packets, which contained the dangerous drugs as stated in Charge 2.  That was 4.01 grammes of a mixture containing 2.79 grammes of heroin hydrochloride.       

6.  At about 3.10 pm, the officers observed you selling drugs to the co-defendant in this case, Purna Bahadur Gurung, and those drugs were found to contain 0.16 grammes of a mixture containing 0.11 grammes of heroin hydrochloride.  The selling of the drugs to the 2nd defendant is the subject matter of Charge 1.

7.  When you were arrested, cash of $2,585.70 was found from you.  After the arrest and finding of the drugs in the bush, you remained silent under caution.

8.  As to the 4th charge, when you were arrested you swallowed the drugs that were in your mouth and you had excreted 14 packets of drugs subsequently at the Lai Chi Kok Reception Centre on 11 February.  Those packets contained 2.40 grammes of a mixture containing 1.62 grammes of heroin hydrochloride.  The estimated street value of the heroin hydrochloride was about $5,000-odd.

9.  Defendant, you are 45 years of age, have 10 previous convictions, of which six are related to dangerous drugs, of which three are related to trafficking in a dangerous drugs.  Those were committed in 2003 and 2005. 

10.  Your solicitor, Mr Albert Szeto, has made full and detailed mitigation on your behalf and I have taken into account all that he has had to say.  He has also adopted and more or less expanded upon your very well written letter expressing remorse and your reasons why you committed this offence.

11.  In summary, you say that your partner of some 20 years passed away in 2009 from breast cancer, and as that was a heavy blow to you, you became very depressed.  You then ran into your old friends and under their bad influence you picked up your drug dependency again.  In order to keep up your drugs expenses, you worked for them selling drugs. 

12.  You now feel very remorseful for your misdeeds. Although you understand and acknowledge you have two previous convictions, you say you are truly remorseful now and are concerned about your young daughter who is 20 years old, who may after this go astray.

13.  You have asked for leniency although you know the severity of this offence and you have informed me that you intend to reform yourself.  The reason for you swallowing the drugs when you are arrested you say was because of fear.

14.  Your solicitor, Mr Szeto, has quite rightly referred me to the case Lau Tak Ming, which set down the tariff guidelines for trafficking in heroin.  The amount of drugs in this case falls within the first bracket, the total drugs involved of up to 10 grammes of narcotics, the tariff is one of between 2 to 5 years’ imprisonment after trial.

15.  Defendant, for these three charges of trafficking in dangerous drugs, for the purpose of sentencing you I shall take the total amount of dangerous drugs involved and then sentence you for each offence separately.  I have taken into account the principle of totality in sentencing you.            

16.  The total amount of drugs was 4.52 grammes.  Had I convicted you after trial, defendant, I would have taken a starting point of 3 years and 3 months’ imprisonment.  Giving you full credit for your plea of guilty, I reduce that term to 2 years and 2 months’ imprisonment or 26 months imprisonment.  So the sentences on the charges would be as follows.

17.  For Charges 1, 2 and 4, I would have taken a starting point of 2 years’ imprisonment, and giving you full credit for your plea of guilty, I reduce those terms to one of 16 months’ imprisonment.

18.  As the total term as I said should be 26 months imprisonment or 2 years 2 months therefore 10 months of Charge 4 shall run consecutive to Charge 2, and the remaining terms in Charge 1 and 4 are to run concurrent to each other.