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DCCC 993/2020
[2021] HKDC 699
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 993 OF 2020
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| Present: |
Ms Money Lo, counsel on fiat, for HKSAR |
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Mr Hui Chun Sing, instructed by Godwin Chan & Co, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
[1] Trafficking in a dangerous drug (販運危險藥物) |
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[2] Possession of a dangerous drug (管有危險藥物) |
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REASONS FOR SENTENCE
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1. The defendant pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (1st charge), and a charge of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (2nd charge), and is so convicted.
1st charge
2. On 22 April 2019, the defendant was stopped and searched outside 36A Shantung Street, Mong Kok. In the purple bag inside the black cross-shoulder bag the defendant was carrying, 10 packets of crystalline solid were found and the defendant was subsequently arrested.
3. Government Chemist confirmed that the 10 packets contained a total of 7.46 grammes of a crystalline solid containing 6.82 grammes of ‘Ice’ and the estimated value was HK$4,267.
4. At the material time, the defendant possessed the 10 packets of ‘Ice’ for the purpose of trafficking.
2nd charge
5. The defendant jumped police bail in relation to 1st charge on 11 October 2019.
6. On 26 August 2020, he was stopped and searched for acting furtively outside 116 Fa Yuen Street, Mong Kok. Later, upon a body search at Mong Kok Police Station, a bag of crystalline solid containing a total of 1.04 grammes of a crystalline solid containing 1.04 grammes of ‘Ice’ was found hidden in the defendant’s underpants. The defendant was arrested. Upon caution, he stated that the same was for his own consumption.
Criminal record
7. The defendant has 10 previous records involving convictions of 13 charges including 2 similar to the 1st charge for which he was sentenced to 12 years and 8 months’ imprisonment for each conviction, to be served concurrently. In relation to the latest conviction he was sentenced to 20 days’ imprisonment and was released on 11 July 2017.
Mitigation
8. The defendant is aged 48. He is single and has an elder brother whom he has lost contact. He used to work in the field of vehicle maintenance, kitchens and construction sites. He was unemployed at the time of arrest for the 2nd charge.
9. In relation to the 1st charge, defence counsel submitted that for trafficking up to 10 grammes of ‘Ice’, the tariff laid down in Attorney General v Ching Kwok Hung [1991] 2 HKLR 125, and HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, is imprisonment for 3 to 7 years’ imprisonment. For trafficking of 6.82 grammes of ‘Ice’, the sentence starting point would be in the range of 68 months’ imprisonment.
10. It is said that the defendant is a drug addict and in order to finance his drug addiction he agreed to deliver ‘Ice’ for other people. He said that out of the 10 packets of ‘Ice’, 2 packets would be for his own consumption and the rest would be sent to other people as directed by the supplier.
11. In relation to the 2nd charge, it is said that the urine test taken shortly after the defendant admitted to Lai Chi Kok Reception Centre supports that the defendant is, in fact, an ‘Ice’ abuser.
12. Defence counsel submitted that the defendant has pleaded guilty at the earliest opportunity and is, therefore, entitled to full one-third sentencing discount. He also urged this court to consider the totality principle and to order that part of the term of the imprisonment for the 2nd charge be served concurrent to that of the 1st charge.
Discussion
1st charge
13. On conviction upon indictment, the maximum sentence is a fine of $5 million and to imprisonment for life.
14. This court agrees as submitted by defence counsel that relying on the case of Tam Yi Chun following the guideline in the Court of Appeal, in the case here, the appropriate sentencing starting point for trafficking 6.82 grammes of ‘Ice’ would be 68 months’ imprisonment.
15. Although defence counsel has stated that 2 packs out of the 10 packs of drugs were for the defendant’s own consumption, he conceded that they are not suggesting a significant portion of the drugs are for defendant’s consumption.
16. Personal background of the defendant seldom affords the defendant a sentencing discount when faced with conviction of trafficking in dangerous drug.
17. In the case here, the defendant had jumped bail on 11 October 2019 and been re-arrested on 26 August 2020. There was, therefore, a delay of nearly 10 months in the disposal of the proceedings against him concerning 1st charge.
18. In the case of HKSAR v Chow Tak Fuk, CACC 428/2004, it is said that in such circumstances the defendant should receive a lesser discount.
19. Here the defendant, by reason of his re-arrest on 26 August 2020, had absconded for less than 10 months. This court is willing to give him a sentencing discount of 30 % by reason of his guilty plea.
20. The defendant is, therefore, sentenced to 47 months and 20 days’ imprisonment.
21. The defendant has 2 similar convictions to 1st charge in the year 2001 for which he was sentenced to 12 years and 8 months’ imprisonment for each of the convictions. Save for a possession of offensive weapon conviction in the year 2015, the defendant was out of trouble since his release, probably before year 2010.
22. This court is not going to enhance the sentencing starting point in the present case for 1st charge. This court also accepts that the defendant is a drug addict himself and he did use a small part of the drugs in question for his own consumption and is, therefore, willing to afford the defendant a further sentencing discount of 2 months and 20 days for his self-consumption purpose.
23. The defendant is, therefore, sentenced to imprisonment for 45 months for the 1st charge.
2nd charge
24. The maximum sentence for conviction upon indictment for this charge is a fine of $1 million and to imprisonment for 7 years subject to section 54A of the Dangerous Drugs Ordinance.
25. When sentencing cases of simple possession of a dangerous drug, 2 factors are of particular importance, the quantity of dangerous drugs involved and the risk that the dangerous drugs would get into the hands of others by access or distribution, ie latent risk.
26. The quantity of drugs in this charge is 1.04 grammes of methamphetamine hydrochloride. In the case of HKSAR v Wong Wai Wah, CACC 181/2017, the Court of Appeal referred to the case of HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405, where the Court of Appeal held that the following three-step approach should be adopted when determining an appropriate sentence for an offender who was a bona fide user and convicted of simple possession of a dangerous drug (heroin or ‘Ice’). For step 1, the judge should normally determine a starting point between 1 year to 18 months’ imprisonment. For step 2, the starting point is increased or enhanced to take account of the latent risk factor to arrive at the total sentence. For step 3, the total sentence is then adjusted to take account of the mitigating factors such as a guilty plea.
27. In the case here, the drug was 1.04 grammes in quantity. Urine test taken shortly after his arrested confirmed that he is an abuser of ‘Ice’. In fact, at the time of arrest he admitted that he was in possession of the drugs for his own consumption.
28. In view of the quantity and the manner of packaging of the drug, and in view of the circumstances of this case, the court considers that there is no real risk of dissipation of the drugs in 2nd charge, and accordingly, there will be no enhancement of sentencing starting point regarding latent risk.
29. The court will adopt a sentencing starting point of 11 months’ imprisonment for the 2nd charge.
30. The defendant committed this 2nd charge offence whilst he has jumped bail for the 1st charge offence. This demonstrates his total disregard for the law, which constitutes an aggravating factor for which the sentencing starting point is enhanced by 4 months to 15 months’ imprisonment.
31. Again, after considering all mitigation advanced by defence counsel, the most valid mitigating factor is his early guilty plea for which he is entitled to full one-third sentencing discount bringing the sentence for the 2nd charge to 10 months’ imprisonment.
32. The 2nd charge offence was committed 16 months apart from the 1st charge offence. Although, the 2 offences both relate to dangerous drug, the nature of these offences are different. Commission of the 2nd charge offence obviously adds to the culpability of the defendant in the 1st charge.
33. Considering the totality principle and the culpability of the defendant in the whole case, the court considers that the total sentence of 50 months is a just and proportionate sentence for the defendant in the case.
34. The court, therefore, orders that 5 months’ imprisonment of the sentence in the 2nd charge shall run concurrent to the sentence in the 1st charge, the rest 5 months’ imprisonment of the sentence in the 2nd charge shall run consecutive to the sentence in the 1st charge.
35. The defendant is, sentenced to a total of 50 months’ imprisonment for this case.
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