HKSAR v. MA CHI MING

DCCC 865/2017

[2018] HKDC 242

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 865 OF 2017

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Reasons for Sentence

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1.  The defendant has pleaded guilty to three charges this morning: firstly, possession of dutiable goods; secondly, failing to declare those goods; and, thirdly, trafficking in a dangerous drug.

2.  The facts have been agreed, and the charges originate from the defendant being stopped whilst trying to enter into Hong Kong through the arrival hall at Lowu control point.  This happened on the evening of 3 July 2017.  The defendant made no declaration to Customs and Excise Service, and he was selected for baggage examination.  The defendant was found to be carrying cigarettes which were dutiable and had not made any declaration to that effect.  A further search discovered the dangerous drug wrapped in tissue paper in his underwear.  The drug concerned was methamphetamine hydrochloride, commonly known as “Ice”, and the narcotic content of that drug was 3.43 grammes.

3.  The defendant in relation to the cigarettes bought from the duty-free shop in Lowu was going to smoke them himself, and the drug, the “Ice”, had been purchased from a friend called Ah Wah in the mainland for some RMB1,500, and he would consume it himself.

4.  The defendant is aged 43 years old.  He has one single conviction for burglary which is now spent, for which he was placed on probation in 1987.  The conviction is not relevant for the purpose of sentencing.  The defendant in his antecedent statement claims that he takes drugs.

5.  As far as mitigation is concerned, the defendant has pleaded guilty.  He would normally be entitled to a full one-third discount from any starting point for sentence.  The defendant lives with his father in Sai Kung, was educated to Form 5 level in Hong Kong.  The defendant had run business as a video game cartridge wholesaler.  His mother passed away in 2011, and the defendant dates his use of “Ice” from that period.  He said to take “Ice” every two to three days.  His most recent employment has been as a helper at a vegetable store.

6.  Defendant in further mitigation admits he is a drug abuser.  He estimates his consumption to be between 3 to 5 grammes per month.  He continues to maintain he bought the drug from Ah Wah in Shenzhen for about RMB1,500.  He had already consumed a small amount of that drug in Shenzhen, and the defendant admits the charge on the basis that the importation of drug into Hong Kong is in fact a form of trafficking in that drug but does maintain before this court that the drug itself would be consumed by him.  In support of that, he makes reference to the drug test which was administered on him on his reception to custody at Lai Chi Kok Reception Centre which shows that on 5 July 2017, he was positive for amphetamine.

7.  As far as resolution of the starting point for sentence is concerned, the guidelines for trafficking in “Ice” are set out in the case of Attorney General v Ching Kwok Hung [1991] 2 HKLR 125.  Trafficking in quantities of up to 10 grammes of “Ice” leads to a sentence bracket of between 3 to 7 years’ imprisonment.

8.  The quantity of drug in this case is 3.43 grammes which will put it towards the lower end of that tariff.  Based on the guideline alone, I would consider an appropriate starting point for sentence would be 48 months or 4 years’ imprisonment.

9.  The defendant in this case prays in aid a mitigating factor which is that he would consume the drug himself.  In this case, he says he would consume all the drug himself, and that is consistent with his plea to the trafficking charge which he concedes is on the basis of his importation of the drug across the boundary.

10.  The courts have dealt with what, if any, discount should be given for this mitigating factor.  In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, a discount from the starting point for sentence could be between 10 to 25 per cent off the starting point where a significant portion of the drug would be used for self-consumption.  It does not deal with the situation where all the drug is for self-consumption.  Presumably, that figure would ‑‑ the percentage would be increased for that.

11.  There is a case in Hong Kong, HKSAR v Chow Kam Lung [2010] HKCA 208 where the Court of Appeal dealt with the case on the factual basis that the entirety of the drug imported was for self-consumption.  In that case, after deduction of the plea of guilty, the original sentence had been 3 years’ imprisonment.  The court then deducted a further 9 months from that figure.  In doing this, they said this would reflect the strong mitigating factor that the drug was solely for the applicant’s own use while at the same time reflecting the intention of the legislature that the importation of a dangerous drug, whatever the purpose, constitutes the offence of trafficking, an offence of greater culpability than simple possession.  

12.  I note that in that case, the deduction from sentence was not from the original starting point, and it may well be more consistent with sentencing practice to treat this as a mitigating factor and deduct a percentage from the starting point.  I will deal with that presently.

13.  There are two other charges the defendant faces.  From a first offence in either of these categories would normally be dealt with by a financial penalty.  And given the nature of this offence, I will deal with them by imposing a short sentence of imprisonment which will be served concurrently.

14.  I will now deal with the question of the defendant’s claim that the drug was for his self-consumption.  In the case of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, a number of factors are set out as to how the court should approach considering whether the drugs were for self-consumption. 

15.  In this case, the defendant has always said that to be the case.  The drugs are in a relatively small quantity, and their value would appear to be in the region of RMB1,500 or Hong Kong dollars.  The defendant is clearly a consumer of the drug and said at the time of his arrest that he had the drugs for his own consumption.  He would appear to have the ability to pay for the drugs.

16.  I consider, having heard all the evidence on this in mitigation, that the defendant should be treated as if the drugs were for his own consumption.  Having reached that factual conclusion, I will deal with the sentences as follows.  On the first two charges that relate to the cigarettes and the failure to declare them, I will take a starting point of 12 days’ imprisonment on each and reduce that to 8 days’ imprisonment for the defendant’s plea of guilty.

17.  On the trafficking-in-a-dangerous-drug charge which is the 3rd charge, I will take a starting point for sentence of 48 months’ imprisonment.  Attributable to the fact that the defendant would consume all the drugs himself, I will make a further deduction for that mitigating factor in the region but not exactly of 30 per cent which leaves a starting point for sentence of 33 months’ imprisonment.  The defendant is entitled to a further one-third discount from that for his plea of guilty.  This leads to a sentence of 22 months’ imprisonment.

18.  I will order that all sentences be served concurrently.  So the overall total sentence is one of 22 months’ imprisonment.