HKSAR v. POON CHIN TO

HCCC 5/2023

[2023] HKCFI 1817

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 5 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of trafficking in dangerous drugs contrary to s4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 before the Eastern Magistrates’ Court on 3 January 2023.

2.  On 31 December 2021, the police were on mobile patrol when they saw the defendant in Sai Yee Street. Upon interception the defendant struggled and was resistant to arrest but eventually calmed down and admitted possession of dangerous drugs. Upon search, he was found to have 5 re-sealable plastic bags, which contained 113.6 g of heroin hydrochloride and a further 3 bags containing 7.85 g of ICE. The street value of those drugs was HK$163,850. At the time of the stop and search, the defendant had on him HK$32,544 in cash despite having only relatively recently been released from prison during the pandemic.

3.  The defendant is a mature man of now 43 years of age and was educated up to Form 5. He was unemployed at the time of his arrest. He has a criminal record dating back to 2002, which includes 6 matters of possession and two for trafficking in dangerous drugs amongst others. His last sentence of imprisonment was in 2019 when he received a sentence of 45 months for wounding with intent.

4.  Mr Pun on behalf of the defendant submits that part of the drugs recovered would have been consumed by the defendant himself. The Court has no evidence as to that save for the positive result for amphetamine on incarceration after arrest. The defendant has been provided with an opportunity to give evidence to support Counsel’s submission but declined to do so.

5.  This is a cocktail of drugs, 113.6 g of Heroin and 7.85 g of ICE.

6.  I have considered the absurdity, conversion and ratio tests as described by HKSAR v Chan Yuk Leong CACC 318/2013 and HKSAR v Yip Wai-yin & anor [2004] 3 HKC 367 and I consider that a starting point after trial of 9 years 9 months to be appropriate.

Conclusion

7.  Having considered the calculations above, and both the mitigation advanced as well as the aggravating features of this case including the latent risk and criminal record of the defendant, I consider an enhancement of 1 month for the latent risk factor and a further 3 months for the fact that the defendant has an extensive criminal record including trafficking would be appropriate in the circumstances of this case making a sentence after trial one of 10 years 1 month’s imprisonment. I will deduct 1 month of that for the fact that the defendant tested positive for amphetamine even though he declined to give evidence on his own behalf. I do so on the basis that the Court has been provided with no mathematical basis to assess the amount of self consumption and consider that the defendant would have sold all of the ICE if he could have done so and would be in a position to purchase more for his own habit. He will of course receive a full one third discount for his plea at the earliest opportunity which will result in a final sentence of 6 years 8 months’ imprisonment.