HKSAR v. POON CHI HO

HCCC 318/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 318 OF 2013

-----------------

-----------------

---------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

---------------------------------

COURT: The defendant, Mr Poon Chi-ho, pleads guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

The Particulars of Offence are that the defendant, on the 11th day of April 2013, at Room 1307, Oi Shun House, Yau Oi Estate, Tuen Mun, New Territories, unlawfully trafficked in a dangerous drug, namely 28.67 grammes of a crystalline solid containing 28.17 grammes of methamphetamine hydrochloride.

Facts Admitted

On 11 April 2013 at 8.06 pm, police officers, conducting a dangerous drugs operation, stopped and searched the defendant who had just come out from Room 1307, Oi Shun House, Yau Oi Estate, Tuen Mun.

Using the keys found on the defendant and under the authority of a search warrant, police officers searched the flat and found on the table inside the living room a cigarette box containing a transparent resealable plastic bag, inside which there were four other transparent resealable plastic bags containing a total of 28.67 grammes of a crystalline solid containing 28.17 grammes of methamphetamine hydrochloride, commonly called "Ice".

The police officers also found on the table an electronic scale, a plastic spoon and a roll of tinfoil and a transparent plastic bag containing 38 straws.

On being arrested and cautioned for the offence of trafficking in a dangerous drug, the defendant stated that all the "Ice" was for his own consumption.

In a video-recorded interview subsequently conducted, the defendant admitted, inter alia, that the "Ice" belonged to him. He had been an "Ice" abuser since 2005, consuming 1.75 grammes of "Ice" per day. He purchased the "Ice" in bulk for a cheaper price, but he refused to answer questions concerning the source of the "Ice". He also explained how he consumed the "Ice" with the electronic scale, the plastic spoon and the tinfoil.

The street value of the "Ice" in question was approximately HK$21,846.

Criminal Record

The defendant has 13 previous convictions of which three were trafficking in a dangerous drug and one was possession of a dangerous drug. His last conviction is for the offence of possession of a dangerous drug which took place on 24 June 2011, for which he was sent to Drug Addiction Treatment Centre.

Mitigation

The counsel for the defendant makes a very thorough mitigation on behalf of the defendant. The defendant is aged 26, single, educated up to form 1 level. He started working at the age of 14 and had worked as a cleaning worker, delivery worker and a sushi apprentice. His father died in 2010 and his mother, who is aged 58, is an alcoholic, suffering from liver disease, and is living in an elderly home.

The defendant started using ketamine in 2005 and "Ice" in 2007. The death of the father struck a severe blow to him and, as a result, he suffered from severe depression. He quit the job of sushi apprentice and became deeply indulged in dangerous drugs.

In 2011, after his release from the Drug Addiction Treatment Centre, he found that his mobility had been greatly reduced because of a severe degree of muscle atrophy of his legs. There is as yet no definite diagnosis. He cannot run and has to walk with a walking stick. There are also a few tumours in his waist which require medical operation to remove but no date for the operation has yet been scheduled.

The counsel for the defendant tells the court that the defendant wishes the court to obtain medical and background reports about him before sentencing. The court is, however, of the view that, in a case of such a serious nature, the background and medical conditions of the defendant do not count much towards mitigation. The court will come to this again later. The court therefore declines to obtain the reports.

The counsel for the defendant helpfully points out that the present case which involves approximately 28 grammes of "Ice" falls within the 7 to 10 years’ imprisonment bracket of sentencing guidelines laid down in AG v Ching Kwok Hung, as perfected in R v Capitania.

Sentence

The counsel for the defence rightly points out that the Court of Appeal had set down clear sentencing guidelines for the offence of trafficking in "Ice". According to the case of AG v Ching Kwok Hung [1991] 2 HKLR 125, as perfected in R v Capitania [2004] HKCU 926, for a quantity of 10 to 70 grammes of "Ice", the starting point is one of 7 to 10 years’ imprisonment.

The amount of "Ice" involved in the present case is 28.17 grammes. The starting point should therefore be approximately 7 years 11 months’ imprisonment.

The defendant already had the medical conditions about his loss of mobility and tumours well before he embarked on the illegal deed of trafficking in dangerous drugs which gave rise to the present case. He will be able to foresee such a consequence before he committed the present offence. The court is therefore of the view that such medical conditions cannot constitute valid mitigation.

As regards the background of the defendant, he has three previous convictions of trafficking in a dangerous drug and one of possession of a dangerous drug. The court has considered whether the starting point should be enhanced because of his previous convictions.

As the offences of trafficking in a dangerous drug took place more than four years ago and the defendant had already been punished for what he had done, the court decides not to enhance the starting point for this reason. The court therefore adopts a starting point of 7 years 11 months’ imprisonment.

The only mitigation the defendant has is his plea of guilty. Giving him credit for it, the court sentences him to 5 years 3 months’ imprisonment.