HKSAR v. POON YAT SHING

DCCC 195/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 195 OF 2014

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REASONS FOR SENTENCE

The defendant faces a charge of "Trafficking in a dangerous drug". He pleaded not guilty to "Trafficking", but guilty to "Possession". The prosecution accepted his guilty plea to a lesser charge. The dangerous drug involved is methamphetamine hydrochloride (commonly known as "ICE") .

Summary of Facts

2.  About 1:50 am on 10 January 2014, outside Ground Floor, No.36 Cheung Sha Wan Road, Mongkok, PC 34003 intercepted the defendant for a body search.

3.  Upon search, the following items were found in his left front trouser pocket :-

(i) 1 transparent resealable plastic bag containing 3 transparent resealable plastic bags which contained a total of 5.05 grammes of a solid containing 5.03 grammes of methamphetamine hydrochloride; and

(ii) 1 transparent resealable plastic bag containing 4 transparent resealable plastic bags which contained a total of 5.17 grammes of a solid containing 5.14 grammes of methamphetamine hydrochloride.

4.  Under caution, the defendant said "Ah Sir, I just bought the ICE in Mongkok for self-consumption.  Give me a chance."  A house search was conducted at the defendant's residence a few hours later.  Nothing illegal was found.

Mitigation & Sentence

5.  The defendant is 40 and divorced.  He has 18 conviction records, out of which are 9 "simple possession" offences and 1 "trafficking" offence. Defence counsel Mr. KWAN informed me that the defendant has worked as a waiter most of the time.  In the course of mitigation, Mr. KWAN invited the court to follow the 3-step approach laid down by the Court of Appeal in HKSAR v WAN Sheung Sum [2000] 1 HKLRD 405.  Regarding the latent risk factor, Mr. KWAN submitted that the risk is low because no trafficking paraphernalia was found in the defendant's home.

6.  A total of 10.17 grammes of ICE are involved in this case.  Had the defendant been convicted of "trafficking" in that quantity, the sentence would have been 7 years' imprisonment[1]. Based on the quantity of ICE involved and the defendant's background, an immediate custodial sentence is inevitable in this case.  Since the defendant has been remanded in jail custody for 8 months, it follows that he is no longer a drug dependant as revealed in his DATC Report.

7.  When determining the proper starting point, I have borne in mind the 3-step approach laid down in WAN Sheung Sum.  First, the defendant being a repeated offender of "simple possession", for 10.17 grammes of ICE, I adopt a starting point of 18 months' imprisonment.  Second, the defendant has 1 previous record of "Trafficking".  Furthermore, the quantity of the ICE itself must be a latent risk factor.  On the other hand, in the absence of any evidence indicative of trafficking, the latent risk cannot be regarded as high in this case.  I will add 6 months to reflect it.  In other words, the starting point shall be 24 months.

8.  The defendant has pleaded guilty to "Possession" at the outset.  I will give him the usual one-third discount, reducing the sentence to 16 months. Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence I impose is 16 months' imprisonment.