HKSAR v. HO HIN HON

HCCC 300/2017

[2018] HKCFI 646

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 300 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Defendant, you have pleaded guilty before this court to a charge of trafficking in a dangerous drug. You have admitted that on 27 April 2017, at Room 806, 8th Floor, Mei Tsui House, Wan Tsui Estate, Tsui King Street, Chai Wan, you unlawfully trafficked in 33.76 grammes of a crystalline solid containing 31.50 grammes of methamphetamine hydrochloride. This drug is commonly known as ‘Ice’.

On the day in question, at about 1.45 pm, you were seen by police officers smoking near the staircase on the 8th floor of Mei Tsui House. Investigation was conducted upon you whereupon you expressed that you resided at room 806 on the same floor. The officers then took you to your residence and you were told that they would conduct a search of the flat on the strength of a search warrant.

They entered the flat and inside the flat was your girlfriend and your father. A search of the flat produced, among other things, the drugs as stated in the charge. They were found within six plastic bags. Four plastic bags contained 33.7 grammes of a crystalline solid containing 31.5 grammes of methamphetamine hydrochloride, one plastic bag containing 0.01 grammes of a crystalline solid containing methamphetamine hydrochloride and another plastic bag containing 0.05 grammes of a crystalline solid containing methamphetamine hydrochloride. These drugs were found inside the pocket of a jacket within a blue cloth bag. Inside the flat were also found three Ice-inhaling devices, two pieces of tin-foil and a short plastic chair with 75 empty plastic bags hidden inside one of the legs of the chair.

Upon arrest and caution you informed the officers that the drugs were for your own consumption. Under caution your girlfriend said she knew nothing about the drugs and your father said they did not belong to him and he did not know what they were.

In a video recorded interview you admitted possession of the drugs found in the jacket, the three Ice-inhaling devices, the plastic chair and the 75 empty plastic bags hidden in the plastic chair. You admitted that the tinfoil was used for the consumption of the drugs.

The estimated street value of the drugs, as of April 2017, was about $9,655. From your plea of guilty you now admit and accept that you were in possession of the drugs seized for the purposes of unlawful trafficking.

Defendant, you are 43 years of age and have six previous convictions. Five of those are for possession of dangerous drugs and one of those was for possession of equipment fit for injecting or inhaling dangerous drugs, so they were all drug-related offences. Your last conviction was in 2013 to which you were sentenced to the drug addiction treatment centre. You had also been sentenced there on two previous occasions in 2006 and 2008.

Upon your arrest and when you were remanded at Lai Chi Kok, the urine sample you had given showed a positive result for amphetamine; that is, a derivative of Ice. That is supported by a letter from the Chief Superintendent at Stanley Prison, at page 90 of the bundle. Mr Gibson Shaw, your counsel, has informed this court that as can be seen from your previous convictions and your positive urine test that you were clearly and had been dependent on drugs for many years. He notes, however, that you have no trafficking record at all.

Mr Shaw says that a small part of the drugs were for your own consumption. He has referred me to the case of Leung Kai Wing CACC 229/2016, where at page 9, at paragraph 26, the Court of Appeal said:

“If a defendant cannot show that a significant proportion of the drugs was for his own consumption, if the judge is willing to accept that an unquantifiable amount less than a significant proportion were for his own consumption then that fact forms part of the background circumstances that a judge can take into account when determining his starting point. Whether this fact, together with other facts in mitigating circumstances, persuade a judge to depart from an arithmetically determined starting point will be a matter of sentencing discretion. Unlike the position of a defendant who can show that a significant proportion of drugs were for his own consumption, when a defendant can merely show a less than significant proportion, he does not have a separate free-standing entitlement to a discount additional to that which he receives for his plea of guilty”.

In the circumstances of this case, Defendant, the drugs were found in six plastic bags, two of which were of a very small proportion which I accept would have been for your consumption. The four remaining plastic bags were of a large amount forming the majority if not significant proportion, that is, 33.7 grammes of the amount as stated in the charge. In those circumstances, Defendant, this is a very, very small proportion of the amount of drugs and I do not consider exercising my discretion in reducing the starting point.

Defendant, the guideline case for trafficking in dangerous drugs is that of HKSAR v Tam Yi Chun. The tariff to be imposed after trial of the amount between 10 and 70 grammes is one of 7 to 11 years’ imprisonment. You have pleaded guilty to this charge before me. However, your plea of guilty came after this case was committed to the Court of First Instance and three days after this case was listed for trial.

The Court of Appeal decision in HKSAR v Ngo Van Nam has changed the previous sentencing practice where a defendant would be afforded a one-third discount from the starting point of the sentence as long as a guilty plea is tendered at any point up until the first day of trial. The Court of Appeal was of the view that a defendant who pleads guilty at an earlier stage should be afforded a greater discount in sentence than a defendant who pleaded guilty at a later stage and laid down the various discounts to be given depending on which stage of the criminal proceedings the guilty plea was tendered.

You had informed the prosecution that you intended to plead guilty after the listing date, which is when the dates of your trial had been fixed, and in accordance with paragraph 214 of the judgment, a discount lies between the 25 per cent discount to the 20 per cent discount up until the date of the trial. In determining the appropriate discount to be afforded, I bear in mind and have regard to the time which the indication for you to plead guilty was given. The indication to your plea of guilty was very, very shortly after the case was set down for trial, some three days later, and in my view, therefore, you are entitled to a 25 per cent discount.

Defendant, you had trafficked in 31.50 grammes of Ice. An appropriate starting point, had you been convicted after trial, would have been one of 8 years and 5 months’ imprisonment. You have pleaded guilty. You shall be awarded a 25 per cent discount to that term and, in the circumstances, the resulting term to which you shall serve will be one of 6 years and 3 months’ imprisonment.