HKSAR v. CHAN KA WO

DCCC633/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 633 OF 2011

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Reasons for Sentence

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1.  The defendant was convicted upon his guilty plea of one charge of trafficking in a dangerous drug.

2.  In sentencing I have considered the whole circumstances of the case, including its nature and facts, in particular the nature and quantity of the dangerous drug concerned, background of the defendant and mitigation put forward on his behalf.

3.  The facts of the case are simple.  Police officers stopped the defendant who was acting suspiciously on the street.  Upon search, the officers found 70 packets of suspected dangerous drug contained in two transparent resealable plastic bags put inside his cigarette box that the defendant was holding.  Suspected dangerous drug was later confirmed to be a total of 32.83 grammes of mixture containing 25.99 grammes of heroin hydrochloride. 

4.  Under caution, the defendant admitted that he was trafficking in a dangerous drug for a reward of $500.  Later, when the defendant was in custody, he excreted on several occasions a total of nine packets containing what later confirmed to be a total of 1.85 grammes of mixture containing 1.41 grammes of heroin hydrochloride.  Under caution, the defendant admitted that he had swallowed this ‘white powder’ in a panic during the earlier arrest. 

5.  The defendant is 38 years old.  He had received education up to Form 2 level.  Before the arrest he was a driver by occupation earning about $9,000 a month.  He was living with his mother who has all along been a housewife.  

6.  The defendant is not a first-time offender.  He had been on 15 occasions convicted.  Obviously drug addiction is his major problem.  Since 1995 he has been convicted more than 10 times for dangerous drug-related offences.  For these convictions he had been fined, sent to DATC for treatment, and sentenced to imprisonment terms with the longest term being 8 months.  His last conviction was in August 2007, at that time for an offence of possession of dangerous drug he was sentenced to DATC for treatment for the sixth time.  The defendant did not make good use of the opportunity to reform himself. He ended up committing a more serious offence in the present case. 

7.  This is the first time the defendant has committed the offence of trafficking in a dangerous drug.  The other offences he had committed were mainly theft.  He committed this nature of offence quite a long time ago, all before 1997.

8.  I was told that when the defendant was remanded in custody, he took the opportunity to reflect upon himself.  I was also told that he is now remorseful and he is determined to turn over a new leaf.  The defendant has written to the court stating the same.  I hope this is true.

9.  The dangerous drug that the defendant trafficked in was heroin.  The total narcotic content was 27.40 grammes of heroin hydrochloride.  The Court of Appeal suggested in R v Lau Tak Ming, [1990] 2 HKLRD 370, that a sentence of 5 to 8 years’ imprisonment should be considered for trafficking in heroin if the narcotic content is 10 to 50 grammes.    

10.  In that case Silke VP further said that within a suggested band, factors which the court may take into account included the profit which may reasonably be expected to be derived, the number of packets, the type of mixture containing the narcotic, the degree of involvement of the offender, his previous history of narcotic offences and matters of mitigation.

11.  In all the circumstances I do not find there are good grounds to depart from the tariff and consider a starting point of 6 years appropriate.  The defendant pleaded guilty, he is  entitled to a one-third discount for this factor.  Having regard to everything said on behalf of the defendant, I am of the view that this is the extent of discount the defendant is entitled to.

12.  I therefore sentence the defendant to 4 years’ imprisonment.