HKSAR v. MA YIU HON

HCCC 276/2018

[2018] HKCFI 2787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 276 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant had pleaded guilty in the Magistrate’s Court to one count of trafficking in a dangerous drug namely, 6.51 grammes of a solid containing 6.09 grammes of cocaine and 9.40 grammes of a crystalline solid containing 9.39 grammes of methamphetamine hydrochloride.

The facts are very simple. On 26 August last year, police gained entry into Room C of a place called the Chi Residences in Nathan Road, Jordan, and upon entry, the defendant was found sitting inside and another male was also found in the room. Police later inquiries revealed that it was the defendant who rented the room for one day on that day.

Upon the search of the room, found on the table next to the bed inside a black box were the drugs and there were also two transparent resealable plastic bags containing substances not controlled under the Dangerous Drugs Ordinance and there were two lots of transparent resealable plastic bags, one with a red line and the other lot was without a red line. There was one black bag containing an electronic scale and an inhaling device.

The accused was arrested and under caution he claimed that all the drugs were for his own consumption. A search of the accused produced a mobile phone and cash of $8,500.

In a subsequent video-recorded interview, the defendant exercised his right to silence.

The estimated street value of the seized methamphetamine hydrochloride was around $3,845 and that of the seized cocaine was around $5,800, so thus the total value of the drugs on the street was around $9,645.

Urine sample subsequently collected from the accused confirmed that amphetamine was found in his urine sample.

The defendant is age 41 and unfortunately he has a poor record as far as drugs are concerned. He has eight previous convictions, five of them were for trafficking in dangerous drugs. Three of those convictions was in 2014 when he was sentenced by the High Court to 6 years and 6 months, each concurrent. He was released from prison on 27 June last year and two months later he was arrested for this offence. I am informed by Mr Kwan that during the time after his release and before his arrest, he was working as a bartender. However, in his antecedents statement, he told the police that he had resigned on 15 August last year which was about 10 days prior to the present offence.

There is not much mitigation in this type of cases and the only mitigation in this case as far as I can see is that he pleaded guilty at the earliest opportunity.

Mr Kwan is right to say that there is the aggravating feature in this case is that he committed this present offence just two months after his release from prison and the drugs found were cocaine and ‘Ice’ and I also accept that the conversion method should be used and that the cocaine should be converted to ‘Ice’ for the purpose of sentencing.

The total amount of the cocaine and the ‘Ice’ would amount to about 15.48 grammes and Mr Kwan had worked out the conversion ratio of converting cocaine to ‘Ice’, being a total of about 11.39 grammes. Mr Kwan also pray in aid that the defendant actually was claiming that a large proportion of the ‘Ice’ that were found were for his self-consumption. He referred this court to the case of Wong Suet Hau [2002] 1 HKLRD 69 where the court listed out the factors that should be considered when considering whether a large part of the ‘Ice’ was for self-consumption or not.

So looking at what was in the room at the time, it is apparent that there were two lots of drugs packed separately, there were two types of resealable plastic bags, one with a red line -- 133 transparent resealable plastic bags with a red line and the other lot, numerous transparent resealable plastic bags. There was an electronic scale and there were substances which were not controlled under the Dangerous Drugs Ordinance. So there was packaging material in the room for packaging the ‘Ice’ and the cocaine and as I have remarked, it would appear that there were two different types of resealable plastic bags found and perhaps might suggest that it would be for easy reference as to which, if they were repackaged, which packet contained cocaine and which packet contained methamphetamine.

As far as the self-consumption point is concerned, the defendant would appear to have worked only for about a month after his release from prison and he had informed the police in his antecedents statement that he had stopped working about 10 days prior to the present offence. The point is I am not prepared, given what I have indicated, to consider that a large part of the ‘Ice’ were for his own self-consumption. I have no doubt that being a drug abuser himself, he may take some ‘Ice’ for his own consumption but I do not consider that he would take a large part and I invited Mr Kwan to call evidence if he so wishes to satisfy this court that a large part was for the defendant’s own consumption but Mr Kwan informs me that he will not be calling evidence on that.

Taking into account the aggravating feature in this case, I would consider a starting point of 8 years’ imprisonment and giving the defendant one-third off, would bring the sentence down to 5 years 4 months. I will deduct 4 months for the defendant’s own self-consumption and so I sentence the defendant to 5 years’ imprisonment.