HKSAR v. MAK YING CHOI

 DCCC551/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.551 OF 2010

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Reasons for Sentence

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The defendant was charged for:

1.  Possession of a dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134.

2.  Possession of apparatus fit and intended for the inhalation of a dangerous drug, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap.134.

The defendant pleaded guilty to both charges and admitted the facts, he is convicted accordingly.

Facts

On 2 November 2009, during a house search at the defendant’s premises, the following were found in his possession:

(a)  5 plastic bags containing a total of 1.74 grammes of a crystalline solid containing 1.70 grammes of methamphetamine hydrochloride; 2 plastic bags containing traces of a solid containing methamphetamine; and 1 plastic bag containing a total of 0.14 gramme of a solid containing 0.13 gramme of methamphetamine hydrochloride;

(b)  2 plastic bags contained a total of 2.03 grammes of cannabis in herbal form;

(c)  1 plastic box contained 2 hand-rolled cigarettes containing 0.45 gramme of a mixture of plant material containing 0.02 gramme of tetrahydrocannabinol; and 1 burnt hand-rolled cigarette containing 0.08 gramme of a mixture of plant materials containing traces of tetrahydrocannabinol;

(d)  A number of apparatus fit and intended for the inhalation of a dangerous drug as stated in the particulars of charge two.

The defendant aged 53, with 6 previous convictions in which one is for trafficking in dangerous drug sentenced to 13 years in 1994.  The defendant was last released from jail in July 2007 for dishonesty offences.  The defendant has two marriages and now lives with his girlfriend and her daughter, works as a decoration contractor earning from $10,000 to $15,000 per month.  Both the girlfriend and her daughter urged the court for leniency on behalf for the defendant.

A DATC report was called for the defendant, the medical officer is of the opinion that defendant is not a drug dependant.  The defendant revealed to the assessing officer that he took drugs to release his pressure from work and home.

The defence rely on the case of Lee Yin Yu and urged the court to depart from the normal starting point in the range of 12 -18 months.  In that case, the quantity involve in two counts of simple possession is 0.48grammes and 1.51 grammes of ‘ice’ respectively and the court of appeal held the appropriate starting points should be 6 and 9 months respectively.

In the present case, the defendant was in possession of 2 kind of dangerous drugs and greater in quantity, they are:

a) 6 packets in total: 1.88 grammes of a crystalline soild containing 1.83 grammes of methamphetamine hydrochloride

b) 2 bags in total: 2.03 grammes of cannabis in herbal form

c) 2.5 hand –rolled cigarette in total: 0.53 grammes of a mixture of plant materials containing 0.02 grammes of tetrahydrocannabinol.

I consider the appropriate starting point for charge 1 to be 12 months and 6 months for charge 2.  The defendant entitled to 1/3 discount for his plea.  I do not consider there to be any mitigating factors called for further deduction.  I consider both offences part and partial the same transaction and order the sentence to run concurrently.

Order

Charge 1  sentenced to 8 months imprisonment

Charge 2  sentenced to 4 months imprisonment, concurrent with charge 1, making a total of 8 months imprisonment.