HKSAR v. SRINUAL EMIKA

DCCC374/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 374 OF 2012

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Reasons for Sentence

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1.  Defendant, you pleaded guilty to three charges before this court. The first two charges are charges of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance. The third charge is one of possession of apparatus fit and intended for the inhalation of dangerous drugs, contrary to section 36(1) and (2) of the same ordinance.

2.  These three offences were committed on the same date and at the same location, that is on 18 December 2011 at a flat at Kam Fook Mansion, 148 to 156 Jaffe Road, Wan Chai.  On that day you admitted you had in your possession dangerous drugs which were 5.51 grammes of a crystalline solid containing 5.47 grammes of methamphetamine hydrochloride which otherwise is known as “Ice”, the subject drug of Charge 1.  The drugs in respect of Charge 2 were 12 tablets containing 0.07 grammes of nimetazepam and 0.51 grammes of a powder containing 0.40 grammes of cocaine.   In respect of the 3rd charge, you had in your possession apparatus, namely five inhaling devices, fit and intended for the inhalation of a dangerous drug, namely methamphetamine which is “Ice”.

3.  The facts are very straightforward.  On 18 December at about 2247 hours, police officers raided the domestic premises and found you, the defendant as well as five adults and two children in the premises.  The defendant admitted she was the person in charge of the premises and the others were her friends. On a small table in the living room were found three inhaling devices containing part of the “Ice”.  On the kitchen shelf was found the “Ice”, the subject matter of Charge 1 and the drugs that is the cocaine and the nimetazepam, the subject matter of Charge 2, including two further inhaling devices which formed part of Charge 3.

4.  The defendant admitted that the drugs and apparatus for inhaling drugs belonged to her.  

5.  After forensic tests, the forensic scientist found DNA of another person in the flat by the name of Mason at the open end of the plastic straw of the inhaling device which was on the small table in the living room which contained 10 millimetres of a liquid containing traces of “Ice”.  When the police entered, Mason was in fact sitting on the ground beside the small table in the living room together with the defendant. 

6.  The forensic scientist also found DNA of Arbib and Hastiyah at the opening end of a plastic straw of an inhaling device found in the kitchen which also contained 15 millimetres of a liquid containing traces of methamphetamine. 

7.  The two persons that I have mentioned, Arbib and Hastiyah, were also in the premises at the time the officers entered and were at that time standing outside the kitchen.

8.  The estimated street value of the drugs in Charge 1 was about $4,215. 

9.  Defendant, I have taken into account all that your counsel Mr Nicholas Adams has said on your behalf in mitigation when considering what is the most appropriate sentence to pass upon you. 

10.  You are 36 years of age, a divorcee and are from Thailand.  You have one conviction in Hong Kong which is on 20 January this year, for possession of a dangerous drug, possession of Part I poison and possession of apparatus fit and intended for smoking dangerous drugs to which you were sentenced to the drug addiction treatment centre. 

11.  You were born in Thailand and moved to live in Hong Kong in 1994 when you married a Hong Kong man by the name of Law Moon-hay.  Approximately four years later, you separated from him and moved away from the home.  In 1994 you and your husband had a son born in Hong Kong.  As you needed money to support yourself and your son and to assist your husband, you then began work in employment that you were familiar with which was as a bar girl in Wan Chai. 

12.  Over the years you have had various relationships.  Out of these relationships you have three children from three separate men.  None of whom you are in a relationship with now.  Your son is now 19 and your other is daughter who is a year old.  They are both in Thailand and are being taken care of by your mother. 

13.  You are now pregnant and about to give birth in about two weeks’ time.  The father of the child is a Philippines bartender who is your ex-boyfriend. 

14.  Prior to sentencing you, I called for a drug addiction treatment centre report and that report has said that you are no longer drug-dependent as a DATC order was already made in January 2012.  You completed the treatment.  You are therefore considered unsuitable for admission to a DATC.

15.  Mr Adams has rightly pointed out that on the evening to which these premises were raided by the police, instead of having a drinks party at home, you were having what can be called an “Ice” party.  What you have admitted was that the seized drugs belonged to you and you had shared some of them with your friends that night. 

16.  As Mr Adams again rightly points out, that is relevant to the latent risk and enhancement factor.

17.  The greatest and strongest mitigating factor is of course your plea of guilty.  The appropriate sentence for a plea of guilty for possession of dangerous drugs is one between 12 and 18 months’ imprisonment.  Consideration must also be given to the quantity of drugs when deciding on the relevant starting point.

18.  In this case an aggravating factor was that you committed this offence whilst on bail for the offence to which you were sentenced to DATC at the Eastern Magistracy. 

19.  Taking all the above factors into consideration and the principle of totality, I pass the following sentence upon you. 

20.  On Charge 1, given the quantity of drugs which were “Ice”, I take a starting point of 15 months’ imprisonment and I also add a further 12 months to enhance the sentence to take into account the latent risk factor, making a starting point of 27 months.  This then must be reduced by one-third to reflect your plea of guilty and that should be reduced to 18 months’ imprisonment for Charge 1. 

21.  On Charge 2, the drugs were 12 tablets containing 0.07 grammes of nimetazepam and 0.40 grammes of cocaine, I take a starting point of 12 months’ imprisonment.  I will give you full credit for your plea of guilty and reduce that term to one of 8 months’ imprisonment. 

22.  On Charge 3, I take a starting point of 6 months’ imprisonment and reduce that to 4 months giving you full credit for your plea of guilty, to which you should be sentenced to 4 months’ imprisonment.

23.  Those terms shall run concurrent to each other, making a total term of imprisonment of 18 months.