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HCCC 85/2014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 85 OF 2014
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| Before: |
Deputy High Court Judge S D’Almada Remedios |
| Date: |
27 November 2014 at 9.55 am |
| Present: |
Mr Paul Leung, on fiat, for HKSAR |
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Mr James McGowan, instructed by John M Pickavant & Co, assigned by D.L.A. for the accused |
| Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: Defendant, you were charged with an offence of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. You pleaded not guilty to that offence, however you pleaded guilty to the offence of unlawful possession of a dangerous drug. Your plea of guilty to unlawful possession of a dangerous drug was accepted by the prosecution. I therefore sentence you on the basis that you have pleaded guilty to that offence of unlawful possession of a dangerous drug.
The facts are fairly straightforward. On 11 October 2013 you were intercepted by police officers at Jaffe Road, Hong Kong because you had your hands inside the pockets of your trousers. The officers were suspicious that you might be in possession of dangerous drugs. When they searched you they found four resealable plastic bags containing the drugs “ice”, which were a total of 11.65 grammes of a crystalline solid containing 11.44 grammes of methamphetamine hydrochloride, otherwise commonly known as the drug “ice”.
Mr James McGowan, your counsel, has mitigated fully on your behalf, both on the previous occasion and today.
Prior to sentencing you I called for a Drug Addiction Treatment Centre report. The report is before me today and Mr McGowan informs me that he has no comments to be made on that report. The medical officer is of the opinion that you are not a drug dependent. That principally is because you have been in custody for well over a year and thus are no longer dependent. As a result of you not being a drug dependent, you are considered not suitable to admission to the Drug Addiction Treatment Centre.
Defendant, you are 33 years of age, are of Pakistani nationality and remain in Hong Kong as a torture claimant. You are waiting for the results of your claim. You have three previous similar convictions for possession of a dangerous drug. The first two being in 2010 and the latest was in 2012. Apart from that you have two other convictions of theft and unlawfully remaining in Hong Kong. The DATC report sets out your full background and your addiction history.
You have been living in Hong Kong and being financially supported principally by your family members in Pakistan and your girlfriend who is a domestic helper in Hong Kong. You do not claim any assistance from the International Social Services.
Mr McGowan has informed the court that these drugs which were found in your possession at that time was not for selling to others but were purchased by you to take home for your own consumption. He has correctly referred me to the leading case in regard to sentence for unlawful possession of drugs cases, which is HKSAR v Mok Cho Tik [2001] 1 HKC 261, where the court held that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession would be in the range of 12 to 18 months. 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. Further, 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.
In this case, defendant, the quantity of drugs was 11.44 grammes of “ice”, you have three previous convictions and there were four packets found upon you in the early hours of the morning. I note there was a latent risk of trafficking, but the risk was not inherently high. You have had no previous convictions for trafficking in a dangerous drug. You were financially supported by family members and your girlfriend and you were on the way home after purchasing the drugs.
In those circumstances, I would have taken a starting point of 15 months’ imprisonment had you been convicted after trial for the offence.
MR McGOWAN: My Lady, I’m sorry, I just rise to my feet. Looking at his criminal record, there are two previous convictions for possession.
COURT: Three.
MR McGOWAN: The other one is awaiting results, which I believe was, in fact, this case.
COURT: Three. Two in 2010 and one in 2012.
MR McGOWAN: I stand corrected. I didn’t -- one, I didn’t have two offences being dealt with together.
COURT: Do you agree now?
MR McGOWAN: Having seen that, yes, I do, my Lady. But I felt obliged to rise to my feet and I apologise.
COURT: Yes, so I take a starting point of 15 months’ imprisonment for the unlawful possession of a dangerous drug. That sentence shall be enhanced for the latent isk factor and I add an additional 6 months as enhancement. That makes a total of 21 months as a sentencing point.
Defendant, you have pleaded guilty to the charge, therefore you deserve the one-third credit and that sentence shall be discounted and you shall serve a sentence of 14 months’ imprisonment.
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