HKSAR v. LEE CHIU FAN

DCCC 141/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 141 OF 2011

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REASONS FOR SENTENCE

1.  The Defendant has been convicted on his own plea of one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134, namely 10.07 grammes of a mixture containing 7.83 grammes of heroin hydrochloride.

2.  The particulars of the offence are that  on 2 December, 2010, police officers were conducting an anti-dangerous drugs operation in the area of the Yaumatei Community Centre Rest Garden.  At about 1842  hours, PC 5016 saw the Defendant walking towards the Yaumatei Community Centre Rest Garden. He was looking  around and appeared nervous. PW1 intercepted the Defendant   and took him to the male toilet of Market Street Public Toilet for a search and found 34 packets containing part of the dangerous drugs the subject matter of the charge  from the front pocket of the Defendant’s jacket. PW1 arrested and cautioned the Defendant.  Under caution, the Defendant  admitted the item seized was heroin and he intended to sell it to earn some money.   In a subsequent recorded interview, he further admitted that he had bought the dangerous drugs in question for HK$3,000 in Shamshuipo and planned to sell it in Yaumatei at HK$140 per packet to earn some money.  He was detained in the Isolation Cell No. 5 of the hospital at  the Lai Chi Kok Reception Centre.  On 5 December, 2010, at 0948 hours he excreted a further 26 packets of suspected dangerous drugs. Under caution, he admitted that this was heroin and he had swallowed these packets when he was arrested on 2 December, 2010.  When further interviewed under caution, he claimed that these drugs were for his self-consumption.

3.  Upon examination by the Government Chemist, the 60 packets of suspected dangerous drugs was found to contain 10.07 grammes of a powder containing  7.83 grammes of heroin hydrochloride. The estimated street value of this was about HK$5,639.

4.  The Defendant now admits that he was in possession of the drugs in question for trafficking, although some of them were for his own consumption.

5.  The Defendant has 6 previous court appearances, with 7 previous convictions, the last being in 2007 for possession of dangerous drugs, when he was sentenced to the DATC.  His criminal record dates back to 1997.  He has four previous convictions related to the possession of dangerous drugs, and 2 related to trafficking in dangerous drugs, in 2002 and 2006,  and 1 previous conviction in 2002 for keeping a divan . 

6.  In mitigation, I am told that the Defendant is aged 47 and educated to Form 3.  He is single.  He is a drug addict. His record discloses that he has been to the DATC in 2007 – he was sentenced to the DATC for his last two convictions of possession of dangerous drugs in 2007.

7.  The antecedent statement discloses that he was educated up to Form 3 in Hong Kong, and he was unemployed  at the time of his arrest, and relied on CSSA.

8.  As counsel has rightly said, the appropriate sentence for trafficking in up to 10 grammes of heroin hydrochloride is from 2 to 5 years’ imprisonment, pursuant to Lau Tak Ming [1990] HKLR 370.

9.  The sentence follows the quantity of drugs.  That would put the quantity in the Defendant’s possession at the material time at the higher end of that spectrum, being 7.83 grammes of heroin hydrochloride, and would warrant a starting point of 4 years’ imprisonment.

10.  Counsel for the prosecution indicates that he would accept that a small part of the drugs in question could have been for the Defendant’s own consumption.

11.  Pursuant to HKSAR v Wong Suet Hau and Another [2002]

12.  Looking at those features of the case, I have decided that the appropriate starting point for this offence is one of 3½ years’ imprisonment.

13.  The Defendant has pleaded guilty and he is entitled to a discount of one-third to reflect that.

14.  That is the only mitigation of weight before me.

15.  He is therefore sentenced to 28 months’ imprisonment.