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DCCC 822/2020
[2021] HKDC 365
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 822 OF 2020
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| Present: |
Ms Annie Lai, counsel on fiat, for HKSAR |
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Ms Elizabeth Herbert instructed by Annie Leung & Co,
assigned by the Director of Legal Aid, for the defendant |
| Offences: |
Trafficking in a dangerous drug (販運危險藥物) |
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REASONS FOR SENTENCE
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1. The defendant pleads guilty to two charges of trafficking in heroin, contrary to section 4 of the Dangerous Drugs Ordinance[1].
2. In summary at 0943 hours on 6 May 2020 the police intercepted the defendant who was acting furtively in the Maple Street Playground in Sham Shui Po.
3. Upon search the police found a candy box inside the left front pocket of the defendant’s trousers. Inside the candy box was sixty-four packets in white and red wrappings containing a total of 11.13 grammes of a mixture containing 8.74 grammes of heroin (charge 1).
4. The police also found on the defendant $15,555 and two mobile phones.
5. Under caution the defendant said he had just sold twenty packets and asked for a chance (charge 2).
6. In a video recorded interview, the defendant stated, inter alia, that he found the candy box in a rubbish bin; when an unknown male approached him he sold twenty packets for $3,200 and that he intended to sell the sixty-four packets of heroin to other persons.
7. The estimated street value of the heroin is $7,438.
Mitigation
8. In passing sentence, I have carefully considered the oral and written submissions of Ms Herbert, including that the defendant, aged 59 is separated from his wife and lives with his younger brother[2].
9. Ms Herbert explains that after being admitted to hospital in 2017 because of excessive swelling in his legs, the defendant has since then only been able to take up part-time cleaning work and has struggled to make enough money to sustain his living expenses. In need of money the defendant committed the present offences[3].
Guidelines
10. In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[4]. The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment.
11. On a purely arithmetical approach a starting point of just over 4 years and 7 months’ imprisonment would be appropriate for trafficking in 8.74 grammes of heroin. I adopt a starting point of 4 years and 6 months’ imprisonment.
12. Charge 2 is of an unspecified amount of heroin. I agree with Ms Herbert that in determining the starting point for an unspecified amount of dangerous drugs the calculation should, unless the facts giving rise to the inferences and assumptions are clear-cut, lean in favour of the defendant[5]. There being no clear evidence whether the defendant sold white or red packets or both, I proceed on the basis that the defendant sold twenty white packets.
13. The average weight of the white packets is 0.14 gramme with the average narcotic content 0.11 gramme. Twenty packets would therefore have a narcotic content of 2.2 grammes.
14. On a purely arithmetical approach a starting point of just less than 2 years and 8 months’ imprisonment would be appropriate for trafficking in 2.2 grammes of heroin.
15. Taking into account the uncertainty in the actual amount of heroin sold and that without the confession the police would not have known the defendant had already sold twenty packets of heroin, I adopt a starting point of 2 years and 6 months’ imprisonment.
16. In R v Lau Tak Ming the Court of Appeal said that within the suggested bands a sentencing judge may properly take into account previous history of narcotic offences[6]. Although the defendant has previous convictions for trafficking in a dangerous drug, taking into account his last conviction for trafficking was in 2005 since which time the defendant has remained out of trouble, I do not enhance the starting point by reason of previous offending.
17. Giving the defendant full credit for his pleas of guilty reduces the sentence on charge 1 to 3 years’ imprisonment and on charge 2 to 1 year and 8 months’ imprisonment.
Totality
18. I agree with Ms Herbert in determining the total sentence to be served by the defendant the court should consider that the dangerous drugs were from the same batch[7].
19. I am satisfied that a total sentence of 3 years and 4 months’ imprisonment properly reflects the defendant’s criminality on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[8].
20. The defendant is convicted and sentenced as follows:
Charge 1 - 3 years’ imprisonment; and
Charge 2 - 1 year and 8 months’ imprisonment with 4 months consecutive and 16 months concurrent to charge 1.
The total sentence to be served by the defendant is 3 years and 4 months’ imprisonment.
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(D. J. DUFTON) |
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District Judge |
[1] Cap 134. Prior to plea being taken Ms Herbert applied for an adjournment to obtain the urine test result on the defendant’s admission to Lai Chi Kok in order to pursue a claim that ten packets were for his own consumption. After further consideration the defendant instructed Ms Herbert to withdraw the application for adjournment and the claim that ten packets were for his own consumption.
[2] See §3 of the defendant’s written submissions in mitigation.
[3] See §§4 & 8 of the defendant’s written submissions in mitigation.
[4] [1990] 2 HKLR 370.
[5] See §§11-14 of the defendant’s written submissions in mitigation.
[6] [1990] 2 HKLR 370 at 386E.
[7] See §§17-19 of the defendant’s written submissions in mitigation.
[8] See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690.
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