HKSAR v. YAM KAI LEUNG

DCCC 1117/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1117 OF 2016

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REASONS FOR SENTENCE

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1.  The defendant has been convicted of one charge of possession of a dangerous drug in relation to 12.5 grammes of methamphetamine hydrochloride. He was originally charged with trafficking in these drugs. At the outset of the trial, the defendant both through his counsel and by himself informed me of his pleading guilty to possession of these drugs. After trial, I found the defendant not guilty of trafficking but convicted him of possession of a dangerous drug in relation to these drugs. The defendant again confirmed his guilty plea to possession of these drugs.

2.  The facts of the case were simple.  The defendant was stopped and searched, and the subject drugs were found in his right front trousers’ pocket.

3.  I sentence the defendant on the basis of his plea and on the conviction that I entered.

4.  Pursuant to section 8 of the Dangerous Drugs Ordinance, Cap 134, I obtained a drug addiction treatment centre report.  The contents of the report are basically consistent with the mitigation put forward by the Defence.

5.  I have carefully considered everything said by Mr Yuen on behalf of the defendant in mitigation.

6.  The defendant’s criminal record shows that he had been sentenced by the court on 36 occasions involving 45 offences.  25 of them are drug related; the first conviction in 1983 with the last recorded conviction being in December 2015.

7.  He is now aged 52 and lives alone.  His son is 10 years old living with his ex-wife.  He also has two brothers who are married and living apart.  He is a CSSA recipient.

8.  As revealed in the report, without sound parenting, he was led astray after his affiliation with some undesirable elements in his early teens.  He has been sentenced to drug addiction treatment centre on four occasions in 1992, 1995, 2005 and 2007.  He has one conviction of trafficking in a dangerous drug in 2008.  His last drug related conviction was in October 2014.  He was previously a methadone user.  He had never joined any voluntary residential drug treatment programme.

9.  As far as his drug addiction history is concerned, he started to take heroin by means of chasing the dragon in 1979.  Although he stopped abusing heroin in 2004, he started to abuse Ice in the same year.  He took the last dosage of Ice in September 2016. 

10.  In the past, he had received various forms of sentencing in relation to his drug related convictions, such as being ordered to pay fines, being sent to drug addiction treatment centre and also sentenced to imprisonment.

11.  The conclusion of the report is that the defendant is no longer drug dependent.  This is, in my view, probably because of his lengthy incarceration since his arrest for the present case on 13 September 2016.  He is considered unsuitable for admission to a drug addiction treatment centre.  I am of the view that the only realistic sentence for the defendant in relation to possession of a dangerous drug is a sentence of imprisonment.

12.  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 months to 18 months.  But that was not “the be all and end all” of the appropriate starting point.  The quantity would be the main governing factor which would determine where the starting point would lie.  If an offender was a persistent offender, he would expect the starting point to be higher than it otherwise would be.  The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff.  Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs.  The full circumstances of the risk must be assessed: HKSAR v Mok Cho Tik [2001] 1 HKC 261.

13.  Previous sentencing has not succeeded.  Having regard to the quantity of drugs involved in this case and the defendant being a persistent offender, I consider that I should take the starting point at the upper end of the said range, which is one of 18 months’ imprisonment.

14.  As to the assessment of latent risk, I am of the view that the quantity of drugs involved in this case is sufficient for such a risk to exist, i.e., the defendant may be tempted at some point to socially traffic that is to share the drugs with friends.  Also taking into account his previous conviction of trafficking, I enhance the sentence by a further 9 months’ imprisonment to reflect this element of latent risk.

15.  The defendant is entitled to a one-third discount from that figure. I therefore sentence the defendant to 18 months’ imprisonment.