HKSAR v. MINNEY JOHN EDWIN

DCCC 208/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 208 OF 2010

____________

________________________

REASONS FOR SENTENCE

________________________

1.  D3 pleads guilty to one charge of possession of 0.85 gramme of cocaine (charge 16) and one charge of possession of 1.05 grammes of cannabis resin and 5.63 grammes of cocaine (charge 17).

2.  At 00.05 on the 31st October last year the police entered the Diesel Bar on Lamma Island. When the police demanded to search D3 he immediately threw two plastic bags, containing the cocaine subject of charge 16, on to the ground.  D3 was then taken to his home where the police found the cannabis and cocaine subject of charge 17. 

3.  In passing sentence I bear in mind all that said by the Court of Appeal inHKSAR v LEUNG Pui-shan CACC 317/2007 of the need for individual justice.  I have carefully considered everything said on behalf of the defendant by Mr Surman.  I take into account the defendant has a clear record and has served six weeks in custody before being granted bail.  I take into account the content of the DATC report which states the defendant is not drug dependant and provides details of his drug taking history, dating back to 2000, at a time when the defendant was in the UK. 

4.  D3 was found in possession of a total of 6.84 grammes of cocaine and 1.05 grammes of cannabis resin.  6.84 grammes of cocaine is neither a very small or very large amount of cocaine.  Cocaine is however a hard drug.  In HKSAR v MOK Cho-tik [2001] 1 HKC 261 at 267 the court said:

“Sentencing is an art, and we emphasize that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case. We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be. The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

5.  I am satisfied 6 months imprisonment is appropriate for charge 16 and 12 months for charge 17.  The small quantity of cannabis does not in my view increase the starting point on charge 17. 

Latent risk

6.  In HKSAR v Jarhia Kuldeep SINGH CACC 96/2006 the court held that the appropriate starting point for possession of 6.82 grammes of ice was 15 months imprisonment, which the court enhanced by 12 months to take into account the latent risk factor, the defendant having been arrested in the street in possession of all the ice.

7.  This case was referred to in HKSAR v CHAN Wing-chung CACC 248/2009 where the Court of Appeal upheld a starting point of 18 months imprisonment for possession of 3.1 grammes of cocaine primarily by reason of the fact the defendant was a persistent offender.  The trial judge in that case enhanced the sentence by 9 months which the Court of Appeal said was too severe and reduced this to 3 months, chiefly because of the relatively small amount of cocaine. 

8.  In a decision handed down during the adjournment the Court of Appeal in HKSAR v YIU Chan-hung CACC 462/2009 held that for possession of 2.96 grammes of ice a starting point of 9 months, although lenient, was within the proper exercise of the judge’s discretion.  The court however said an enhancement of 9 months was too great.  The court accepted that there was some latent risk of the drugs, or some part of them, being passed on to others, especially considering the admission of trafficking in respect of the drugs found inside his premises.  That risk the court said was not, however, very high considering the relatively small quantity and that it was not divided up into separate packets and the applicant was not in a place conducive to distribution of the drug.

9.  I refer to these three cases to show each case is very much fact sensitive.  I disagree with Mr Surman that latent risk is absent in this case.  The amount found in the bar was 0.85 gramme of cocaine 0.78 contained in two plastic bags and 0.7 contained in a separate plastic bag.  The larger quantity of 5.51 grammes of cocaine was found in one plastic bag in the defendant’s home together with one other plastic bag containing 0.12 gramme of cocaine.  The cocaine being found in a total of five plastic bags, four of which contained small quantities of cocaine together with the fact the defendant had taken three of those bags with him to the bar, there was in my view a risk some of the cocaine may fall into the hands of others.  I therefore increase the starting points by 3 months to 9 months and 15 months imprisonment.

Suspended sentence

10.  Mr Surman asks that the court suspends the sentence.  In this regard I take into account the death of the defendant’s mother last year and that the defendant now has an offer of employment in the UK.

11.  I bear in mind that generally in cases where the ill health of a close relative is sought to be relied on, the court has not allowed this factor to be taken into account (see HKSAR v Gurung Hemant CACC 332/2005, a case where the defendant’s father died).  Whilst sympathetic with the defendant, the illness and subsequent death of his mother is not in my view an exceptional circumstance warranting suspension of the sentences.  

12.  Nor is the fact the defendant has now obtained employment in the UK.  The defendant came to Hong Kong as a visitor and within weeks was found in possession of both cocaine and cannabis.  The fact he now has a job back in the UK waiting for him is not in my view an exceptional circumstance warranting suspension of the sentences.  I am satisfied there are no exceptional circumstances warranting suspension of the sentences.

13.  Mr Surman also relies on the fact the two weeks in Hei Ling Chau on remand have been particularly difficult for the defendant being the only non-Chinese inmate.  The courts have said the “foreignness” of a defendant is a factor for which, depending on the circumstances of the case, little or no weight should be given.  I am satisfied there should be reduction in sentence or suspension because the defendant is a foreigner.

14.  Mr Surman further submits the defendant has already been punished by not being able to work since he was released on bail.  This is because his immigration status did not permit him to work in Hong Kong and bail conditions did not allow him to go to the UK.  This in my view is entirely referable to his own misconduct and cannot assist him in mitigation.

15.  Giving the defendant full credit for his pleas of guilty he is sentenced to 6 months imprisonment on charge 16 and 10 months imprisonment on charge 17.  Possession in respect of both offences relating to the same day and time concurrent sentences are appropriate.  I am satisfied a total sentence of 10 months imprisonment properly reflects the defendant’s criminality on charges 16 and 17.