HKSAR v. YICK HONG CHI

DCCC1388/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1388 OF 2010

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Reasons for Sentence

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1.  The defendant was convicted upon his guilty pleas of one charge of trafficking in dangerous drug, Charge 1, and one charge of possession of dangerous drugs, Charge 2.

2.  In sentencing, I have considered the whole circumstances of the case including its nature and facts; in particular the nature and quantity of the dangerous drugs concerned, background of the defendant and mitigation put forward on his behalf.  The facts which the defendant admitted can be summarised as follows.

Charge 2

3.  Police officers arrived at a room where the defendant was living in response to a complaint of fighting.  In the course of the investigation police officers discovered two resealable plastic bags on the table.  Suspicion being aroused, a search was conducted on the defendant.  From his trousers pocket, two plastic bags containing what later confirmed to be 0.57 grammes of a solid containing 0.54 grammes of cocaine and a banknote containing 0.23 grammes of a powder containing 0.22 grammes of cocaine was found.  The defendant admitted under caution that these items were coke and were for his own consumption.

Charge 1

4.  The two abovementioned resealable plastic bags were seized.  They were later confirmed to be containing a total of 8.73 grammes of powder containing a total of 4.64 grammes of ketamine.  Further search was conducted inside the room.  As a result seven plastic bags containing a total of 193.19 grammes of a powder containing a total of 106.75 grammes of ketamine were found.  The defendant admitted that these dangerous drugs belonged to him.  The estimated street value is about $26,000.  Also found in the room were an electronic scale, 60 empty resealable plastic bags and $46760 in cash. 

5.  The defendant is 31 years of age.  I was told that his parents became estranged when he was still 5 years old.  He was brought up by his grandfather.  When he was 12 years old his father passed away.  I was told that there was inadequate supervision on the defendant when he was growing up.  He received lower secondary education.  He had worked in a restaurant kitchen where he met undesirable characters and began to go astray. Eventually he came into contact with dangerous drug. 

6.  He committed his first offence in 1999.  With conviction of the offence of possession of dangerous drug, he was put on probation for 12 months.  Unfortunately he did not take the opportunity to reform.  He went on to commit further offences.  All together he had been convicted on 14 previous occasions.  In 2000 he was on four occasions convicted of copyright offences.  Since 2002 he had been on nine occasions convicted of dangerous drug related offences, the last two convictions being for the offence of trafficking in dangerous drugs.  He was imprisoned for the last conviction for 44 months.  He was released from prison in 2010 and in less than two months he committed the present offences. 

7.  I was told that the defendant had tried to reform himself.  In 2004 he took up employment in the airport as a transportation worker.  However, he was laid off in the following year.  He fell into distress since he felt he was not accepted by the society because of his conviction record.  As a result, he became addicted in dangerous drug. 

8.  I was also told that the defendant did try to seek employment after his last discharge but to no avail.  He was under tremendous financial pressure and for this reason often had argument with his girlfriend.  It was in these circumstances that he committed the present offence of trafficking in dangerous drug, wanting to earn some fast money. 

9.  Learned defence counsel told me that the defendant is now extremely remorseful and urged for a lenient sentence. 

10.  As far as Charge 1 is concerned, the dangerous drug the defendant trafficked in was ketamine.  The quantity of narcotic content was 111.39 grammes. 

11.  In the case of S J v Hii Siew Cheng (CAAR 7/2006) the Court of Appeal indicated a tariff for sentencing for traffickers in such dangerous drug.  If the quantity of ketamine trafficked is 50 to 300 grammes, the sentence to be considered is 6 to 9 years’ imprisonment. 

12.  Having considered the whole circumstances of the present case bearing in mind mitigation submission, I see no reason to depart from the tariff.  The court was informed that the defendant is drug dependent but I do not consider it necessary to consider sending him to DATC for treatment.  In the light of the length of the imprisonment term I am going to impose the facility and service in the prison should be sufficient to assist the defendant to get rid of a drug habit.

13.  In R v Lau Tak Ming [1990] 2 HKLR 370 the Court of Appeal said that within the suggested bands the court should take into account the following factors:  the profit which may reasonably be expected; the number of packets; the type of mixture contained in the narcotic; the degree of involvement of the offender and his previous history of narcotic offences. 

14.  I have to bear in mind that this is the eleventh time the defendant is convicted of a dangerous drug related offence and it is the fourth time he is convicted of the offence of trafficking in dangerous drug.  This is an obvious aggravating factor.  Bearing in mind this factor and the fact that the defendant committed the present offences so soon after his discharge, I consider the starting point should be enhanced by six months. 

15.  In all the circumstances I consider a starting point of 7 years appropriate for Charge 1. 

16.  As regards the possession charge, Charge 2, in the light of the sentence I aim to impose on Charge 1, no DATC Report is required before sentencing.  

17.  The defendant was in possession of a total of 0.80 grammes of a powder containing 0.76 grammes of cocaine.  In my judgment, a starting point of 15 months is appropriate, having regard to the record of the defendant.

18.  The defendant pleaded guilty.  He is entitled to a one-third discount for this factor. 

19.  Having considered everything said on the defendant’s behalf, I am of the view that this is the extent of discount the defendant is entitled to. 

20.  Based on the matters aforesaid, I sentence the defendant to 56 months’ imprisonment for Charge 1 and 10 months’ imprisonment for Charge 2. 

21.  The two offences were committed in the same place and at the same time.  Learned defence counsel urged me to consider ordering the sentences to run concurrently.  In my judgment this is not appropriate as a matter of principle since the two charges involved two different types of dangerous drug.  However, the defendant is entitled to a meaningful discount from the notional overall starting point which will then exceed the sentencing jurisdiction of this court. 

22.  Having regard to totality I order one month for the sentence imposed on Charge 2 to run consecutively to that imposed on Charge 1. 

23.  Accordingly, the defendant is to serve a total immediate term of 57 months’ imprisonment.