HKSAR v. PAK WAI HUNG

DCCC 344/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 344 OF 2015

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to 2 charges of "Possession of a dangerous drug" (Charges 1 and 2) and a charge of "Possession of Part I Poison" (Charge 3).

Summary of Facts

2. About 9:25 am on 11 February 2015, PC 14983 (PW1) stopped the defendant for enquiry at the sitting area on North Street, Kennedy Town.  Upon search, the following items were found in the defendant's rucksack :-

(i) inside a small compartment on the left side, a plastic bag which contained 0.29 gramme of a crystalline solid containing 0.28 gramme of methamphetamine hydrochloride (Charge 1); and

(ii) inside a black pouch in the middle compartment, a glass tube fit for smoking ICE.

3. Under caution, the defendant admitted that the plastic bag contained "ICE" and the glass tube was for consuming "ICE".  He purchased the "ICE" at $200 from someone at a park on Temple Street; and the glass tube was provided as a gift.

4. The defendant was taken to Western Police Station.  About 10:15 am, PW1 searched the defendant again.  A cigarette box was found inside a compartment of the defendant's rucksack.  The cigarette box contained the following items :-

(i) a plastic bag which contained 10.50 grammes of a crystalline solid containing 10.10 grammes of methamphetamine hydrochloride (Charge 2);

(ii) a plastic bag which contained 2 tablets and 0.15 gramme of tablet fragments containing zopiclone (Charge 3); and

(ii) a glass tube fit for smoking ICE.

5. Under caution, the defendant claimed that all the items contained in the cigarette box were offered by the same person at the price of $2,000.  All the drugs were for self-consumption.

6. In his video-recorded interviews, the defendant repeated similar admissions and gave further details of his acquisition of the items seized.  He also admitted that the tablets inside the cigarette box are "Pak Gua Tsz", but does not know their usage.

Mitigation & Sentence

7. The defendant is 32 and has 2 conviction records, one of which is "simple possession".  For that offence (KCCC 1394/2015), he was sentenced to 4 months' imprisonment in June this year. Defence counsel Mr. FU informed me that the defendant was arrested for the offence in KCCC 1394/2015 on 31 January 2015.  Mr. FU accepts that the defendant committed the 3 offences in the present case whilst on police bail.

8. Mr. FU has also informed me that the defendant is single and resides with his parents.  He is a skilled scaffolding worker who can earn $1,500 per day.  On average, the defendant works 20 to 25 days per month and contributes half of his income to support his parents.  A bundle of mitigation letters was placed before me; their contents are duly noted.

9. In mitigation, Mr. FU submitted that the defendant had the financial ability to purchase 10 grammes of ICE in order to enjoy a cheaper price.  That quantity would last him about 10 days.  The defendant has no previous conviction of "Trafficking".  There is also no evidence to suggest that he would share the drug with others.  Hence, the latent risk is low.

10. According to the DATC Report, the defendant is not a drug dependant.  He has been remanded in jail custody since February this year, the result is somewhat expected. Although a DATC Order is not necessary, an immediate custodial sentence is inevitable in the present case.

11. For Charge 1, I adopt a starting point of 9 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 6 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 6 months' imprisonment.

12. For Charge 2, 10.10 grammes of ICE (packaged in 1 plastic bag) were involved.  When determining the proper starting point, I have borne in mind the 3-step approach laid down in HKSAR v WAN Sheung Sum [2000] 1 HKLRD 405.  First, the defendant being a second-time offender of "simple possession", for the quantity and nature of the drug involved, I adopt a starting point of 15 months' imprisonment.  Second, 10.10 grammes of ICE are a significant quantity and it must be a latent risk factor.  In the absence of any other evidence suggesting "trafficking", I accept that the risk is moderately low.  I will add 6 months to reflect it.  In other words, the starting point shall be 21 months.  With the guilty plea, I sentence the defendant to 14 months' imprisonment.

13. For Charge 3, I adopt a starting point of 3 weeks' imprisonment.  With the guilty plea, I sentence the defendant to 2 weeks' imprisonment.

14. It is plain that the defendant possessed the substances involved in all 3 charges at the same time.  Hence, I order the sentences in Charges 1 to 3 to run concurrently.  On the other hand, the defendant committed the present 3 offences whilst on police bail.  Notwithstanding the totality principle, I order the sentences in Charges 1 to 3 to run consecutive to the sentence in KCCC 1394/2015.