HKSAR v. CHAN YUET YU, PHILIP

DCCC 1116/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1116 OF 2010

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Reasons for Sentence

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Charge and facts

1.  The Defendant pleads guilty to possession of 13.14 grammes of a crystalline solid containing 12.62 grammes of what is commonly known as the dangerous drug, “ice”. At around 12:08 a.m. on 10 August 2010, the police intercepted him outside Ground Floor, No. 95 Tung Choi Street, Mongkok. He had a plastic bag containing the said drug wrapped in a piece of tissue paper inside his trouser pocket. He also had cash in the sum of $320.50.

2.  After arrest and caution, he said that the drug had been purchased just a while ago at a price of $5,500 for his own daily consumption. He claimed to be the manager of a nightclub with a monthly salary of about $15,000.

Sentencing considerations

3.  There are no sentencing guidelines for possession of “ice”. Given the rather large quantity for a case of possession, I have to consider the latent risk in particular, which will enhance the sentence.

4.  In Attorney General v Chan Ching-ho[1994] 2 HKC 457, Power VP said, at 458:

“The seriousness of possession of a large quantity of drugs was well-described by Judge Lugar-Mawson in Chiu Hung-wong'scase when he said at p. 189, lines 31-45:

‘The amount in the possession of the respondent was indeed substantial. The sentence on a person found to have been trafficking in that amount would be in the band ranging from eight to twelve years. We remind ourselves immediately that he was found guilty only of simple possession and must be dealt with upon that basis. The gravamen of such an offence, when a large quantity of drugs, is involved is the danger which is posed to society by having such drugs "at large" in the control of an addict. The amount involved cannot but be regarded as being in the top range of quantity where it would be proper to lay a charge of simple possession rather than one of possession for the purpose of trafficking. We so observe as it indicates that this offence must be ranked among the more serious offences that could be committed by an offender convicted under s. 8, [the possession charge]’”.

5.  In HKSAR v Mok Cho tik [2001] 1 HKC 261, the applicant possessed over 15 grammes of “ice” in 2 plastic bags and a glass bottle in his residence. He told the police that it was for his own consumption and, when his friends came up, he would treat them to the drug. Stock JA, as he then was, said:

“17. Sentencing is an art, and we emphasize that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case. We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point.”

6.  In HKSAR v Lai Kam Sang [1999] 2 HKLRD H10, the applicant possessed 26.61 grammes of “ice”. The trial judge adopted a starting point of 2 years for the possession and enhanced it by another 2 years due to the latent risk. The Court of Appeal regarded that it might be proper to double the sentence because of latent risk where the quantity of drug was large, such as in the case of HKSAR v Lau Chi-chu Crim App 396/1998 where 63.38 grammes of “ice” was involved. Here the starting point for the possession was to be reduced to 18 months and the latent risk to 12 months, making up an overall starting point of 30 months on appeal.

7.  In HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405, the applicant possessed 34.33 grammes of “ice”. He was a drug addict but he had no trafficking record. He was gainfully employed. The Court of Appeal regarded that the possession should warrant a starting point of 16 months and the latent risk 6 months, making up an overall starting point of 22 months.

Personal circumstances and mitigation put forward

8.  The Defendant is now 53 years of age. After F.5, he took up employment as a garment worker and an apparel label manufacturing worker. In late 1970s, he operated an apparel label trading company until 1990s. In 1997, he opened a nightclub with his friends in Yau Ma Tei. In 2003, he withdrew from the business. Afterwards, he helped his brother in operating a plastic factory in China. He also worked as a part-time bartender. In 2006, he worked as a full-time bartender.

9.  As stated in the DATC Report, he started to abuse “ice” in 2003. In 2005, he started to abuse cocaine. He only took cocaine at irregular intervals when offered by friends. At the time of the offence, he had been taking “ice” about 4 times, about $400 each time, per week. So his weekly drug spending would be about $1,600. His counsel tells me that his daily intake was 1 gramme. The drug, 12.62 grammes of “ice”, could last 2 – 3 weeks.

10.  He has 3 previous convictions for possession of dangerous drugs. He was sent to DATC for the first one, in December 2005. He was jailed for the subsequent ones, in August 2007 and March 2009 respectively.

11.  On the subject of latent risk, his counsel tells me that there is little or no latent risk as he had 2 sources of income prior to the arrest. As stated in the DATC Report, one alleged job was as a manager at a nightclub with a monthly salary of around $15,000. The other alleged job was not even stated in the DATC Report but his counsel tells me that it was in a company called Shaolung (Int’l) Investment Group Limited. There is, however, no proof of employment or record of income received from any of the 2 said jobs. His counsel tells me that the Defendant is not prepared to go for a Newton Hearing so that evidence can be adduced to consider if he was gainfully employed. So there is no evidence before me that he was employed or had any source of income. I find the latent risk rather high.

Sentencing present Defendant

12.  The DATC Report revealed that he was but is no longer a drug dependent. It is most probably, I suppose, due to his detention since last year. He has no trafficking record. He is, however, not gainfully employed. I take a starting point of 15 months for the possession, to be enhanced by 9 months for the rather high latent risk. The overall starting point is 24 months. I give one-third discount for his plea of guilty. There are no other mitigating factors. The sentence is 16 months.