HKSAR v. FU YUNG

DCCC 894/2019

[2021] HKDC 1227

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 894 OF 2019

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REASONS FOR SENTENCE

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The Charge

1.  The defendant was initially charged with one count of trafficking in a dangerous drug.  The Prosecution has amended the said charge to possession of dangerous drug and the defendant pleaded guilty to the amended charge accordingly. 

Admitted Facts

2.  At around 1:40 pm on 15 August 2019, PC9178 (“PW1”)  and his teammates were on an anti-narcotics operation at No 294 Castle Peak Road, Cheung Sha Wan, Kowloon, in Hong Kong.  PW1 noticed the iron gate to the rooftop was left ajar. PW1 and his teammates went onto the rooftop and saw that there are two rooms.  PW1 entered one of the rooms (“Room 1”)  and found two men inside: the defendant was lying on a bed, while the other man was sitting on a chair.

3.  Room 1 was searched and the following items were found on the table inside Room 1:-

(a)  Three transparent re-sealable plastic bags wrapped in a piece of white tissue paper, containing 13.9 grammes of a mixture containing 12.1 grammes of heroin hydrochloride;

(b)  Four electronic scales;

(c)  Four transparent re-sealable plastic bags, each of them contained many re-sealable plastic bags;

(d)  Four lighters;

(e)  A paper box containing many plastic wrappers;

(f)  A plastic straw; and

(g)  A plastic box containing a pile of aluminium foil, Mark Six tickets and a pair of scissors.

4.  Under the table, there was another electronic scale.

5.  The Government Chemist subsequently confirmed the narcotic content of the drugs seized.

6.  The estimated street value of the heroin seized was around HK$10,440.

7.  The defendant was then arrested.

8.  The defendant had two mobile phones and cash of HK$13,000 and New Taiwan Dollar $100 on him.

9.  A video-recorded interview was conducted with the defendant on the next day, during which he admitted the following under caution:-

(a)  He lived in Room 1 with a friend, his friend was visiting Mainland China;

(b)  He knew the drugs were heroin. An unknown male named “Yin Jai” brought the heroin to Room l, gave it to him and told him to keep it;

(c)  He had been consuming heroin for over 20 years;

(d)  Two of the electronic scales found in Room 1 belonged to him and the other two were given to him by Yin Jai. The electronic scales were used for weighing the drugs he bought;

(e)  The plastic wrappers were used for packing left over heroin when he could not finish it in one go;

(f)  The empty re-sealable plastic bags belonged to his friend;

(g)  The cash seized from him was his savings.

10.  At the material time, the defendant was in possession of the above heroin.

11.  The defendant committed the present offence while absconding from bail.

The defendant’s background and mitigation

12.  The defendant is 58 years old.  He has separated from his family since 2013.  He is now living on CSSA allowance. 

13.  The defendant born in the PRC and emigrated to Hong Kong with his family subsequently.  He studied up to primary school level.  The strongest mitigation factor is one of guilty plea.

14.  The defendant has been taking drugs since about 1998 (as reflected from his first drug related conviction).   Since 1998 until 2017, he has 17 convictions of which 8 are drug related conviction.  Before sentence, I am obliged to consider the Drug Addiction Treatment Centre (DATC)  Report, which states that the defendant is a drug dependant.  However, DATC order is not recommended because of his repeated relapsed to drug abuse despite opportunities being given to him.  In short, the remaining question is matter of the length of custodial sentence.

15.  Mr Surman drew my attention to the following matters.  Firstly, he has been cooperative with police and intake officer.  Secondly, there is no further aggravating factors such as drug related financial motive, or involving young people.  Thirdly, he has supportive family.  Lastly, he has been remanded for about 5 months for this case.   

Applicable legal principles

16.  Mr Surman reminded me and I agree that the Court should adopt a 3 step approach in considering sentence for simple possession: HKSAR v Wan Sheung-Sum [2000] 1 HKLRD 405 and HKSAR v Mok Cho-tik [2001] 1 HKC 261.

Discussion

17.  Mr Surman quoted the said cases and suggested that the appropriate starting point for possession of heroin or methamphetamine was 12 to 18 months’ imprisonment.   He opined that given the defendant’s similar convictions and quantity of the dangerous drug involved, the defendant may fall into the higher end i.e. 18 months. 

18.  I wish to reiterate what the Court of Appeal stated in Mok Cho-tik:-

“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. But that was not ‘the be all and end all’ of the appropriate starting point. The quantity would be the main governing factor which would determine where the starting point would lie. If an offender was a persistent offender, he could expect the starting point to be higher than it otherwise would be: HKSAR v Chan Yat Sing (CACC 777/1997, unreported), HKSAR v Lau Chi Chiu (CACC 395/1998, unreported), HKSAR v Lai Kam Sang (CACC 578/1998, unreported), HKSAR v Chew Sik Pok (CACC 502/1998, unreported)  and HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405 followed (at 266C-267D).

The existence of the risk factor and the degree of risk were not a matter of mathematics upon which the court should provide a tariff. Amongst the obvious factors to be taken into account were: whether the offender was in employment; whether the drugs were kept in a place to which others had access; whether the offender had convictions for trafficking; and the quantity of drugs. The full circumstances of the risk must be assessed.”

19.  In the present case, the quantity of drugs was quite substantial. Had the defendant been convicted of trafficking, he would have faced about 62 months’ imprisonment.  I adopt a starting point of 18 months’ imprisonment for the present charge.  The defendant was unemployed. He committed the present offence while absconding from bail.  Further, the defendant is a recidivist. The latent risk was between low to medium, as the police noticed the iron gate to the rooftop was left ajar and other addicts may gain access to the premises easily. In fact, there was another person in the premises when the police arrived.

20.  The starting point is increased by 3 months to reflect the above aggravating factors including latent risk, recidivism and committing offence while on bail, arriving at a starting point of 21 months’ imprisonment.

21.  The defendant has pleaded guilty at the first opportunity and is entitled to the full one third discount.  The final sentence is 14 months’ imprisonment.

22.  I am indebted to the able assistance of Mr Guan and Mr Surman.