HKSAR v. AU CHUNG KEUNG

 DCCC704/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 704 OF 2009

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a total of five charges. He has accepted the facts, and I have convicted him of those offences. The offences consist of two offences of possession of a dangerous drug, two offences of trafficking in a dangerous drug and one offence of possession of apparatus fit and intended for smoking a dangerous drug.

2.  There is a Summary of Facts that the defendant has agreed to, and they set out the basic facts on which sentence will be based. And that is that, on 21 April 2009, in the evening of that day, the police conducted an anti-narcotics operation at the defendant’s home in Ma On Shan and intercepted him at the lift lobby and found a quantity of drugs in his right pocket these are the drugs possessed in the 1st charge. The defence said that those drugs were for his own consumption and they constitute a small quantity of ketamine and methamphetamine hydrochloride.

3.  Police then executed a search warrant inside the premises and found the drugs which constitute the drugs in the 2nd charge; that is the trafficking charge dealing with the 6.18 grammes of cocaine. The Facts show that they were found in a rattan basket. This held three resealable transparent plastic bags, and they contained 29 small resealable transparent plastic bags containing a total of 7.96 grammes of a solid with 6.18 grammes of narcotic, that is, cocaine.

4.  There was an electronic scale, a piece of paper containing traces of powder with cocaine on it, a pair of scissors, a box of tinfoil and another box containing 129 small resealable transparent plastic bags. The police also then found another transparent bag with again a small quantity of ketamine in it and another transparent plastic bag containing some cannabis in herbal form.

5.  And those constitute the drugs that the defendant admits possession of in Charge 3.

6.  As far as Charge 4 was concerned, the police also found an inhaling device, which is a glass Ribena bottle with straws inserted in it. It had some traces of methamphetamine on it.

7.  The defendant admitted the drugs found in the flat belong to him and had nothing to do with anyone else.

8.  And as far as the 5th charge, the final charge, of trafficking is concerned, the defendant led the police to his private car, and it was opened with a car key found in the defendant’s pocket. And inside the car, two transparent plastic bags with seven and four resealable transparent plastic bags of cocaine were found in a cup holder to the left of the driver’s seat. And the defendant again admitted that the cocaine was his.

9.  There was a video recorded interview, and the defendant made further admissions during that about how he had purchased and processed the drugs. Those were the facts that the defendant accepted, and I convicted him.

10.  Now, the defendant’s antecedents were also given to me. Those established the defendant left school at 16, being a delivery worker, renovation trainee and involved with the metal recycling business, a number of times in prison, which I will deal with in a minute. He was healthy but was on his own admission a drug addict and addicted to both “Ice” and cocaine since at least 1955. He was living in cohabitation with his girlfriend.

11.  The defendant’s criminal record was also put before the court. The defendant has a total of 11 previous conviction records, starting as early as 1991 with conspiracy to rob when he was placed on probation. And since about 1995, the defendant has had a series of convictions for possession of a dangerous drug, which coincides with his admission in the antecedents that he became an addict at about that time.

12.  In 1995, he was fined, but by 1996, he was sent to a drug addiction treatment centre. In 1998, he was placed back on probation again but, unfortunately, that seems to have been unsuccessful. By the year 2000, he was back in the drug addiction treatment centre for breach of the probation order. Again, in 2007, the defendant again was at the drug addiction treatment centre for another offence of possession of dangerous drugs. And shortly after, the defendant was also sentenced on 21 December 2007 to 6 months’ imprisonment, suspended for 36 months. The defendant admits that by his conviction for these offences, he has placed himself in breach of that suspended sentence.

13.  That sets out the defendant’s conviction history. I had obtained a background report because the defendant has expressed a deep desire to rid himself of this addiction that he has been subject to since 1995. I wanted to see how that was reflected by the Probation Services. The Probation Services concluded the defendant to be brought up in a family with good financial provision but as is common, parental supervision became ineffective after he became a teenager and he had dropped out from school and then became involved in idling around amusement game centres.

14.  I note he committed criminal offences since he was about 17 years old. I noted the Probation Service and drug addiction treatment centre treatments. He has been taking soft drugs and heroin since he was about 16 to 18, and this is reflected in his inability to maintain stable employment, which he did not take until he was in his mid-20s when he became a lorry driver.

15.  They said that the defendant is a deep-rooted, or was a deep-rooted, drug user and had failed to turn away from his undesirable associates. He says he has a weak self-will and high susceptibility to addicted friends’ influence. The account of the offence show he is still closely connected with drugs and in need of strong determination to sever his bad associations and reform himself so he could have a more promising rehabilitation after discharge in the future.

16.  The defendant has been remanded in custody for these offences, so he has been out of circulation from his drug associates for some time.

17.  I have received communications from the defendant’s parents who are very supportive of him. They ask, of course, for a chance for their son and also show that they are still concerned about him and still are willing to assist him. And aside from his addictive problem, they speak well of him.

18.  I have to decide the appropriate sentence in respect of these offences. The defendant has pleaded guilty to two offences of trafficking, which must constitute the most serious of the criminality admitted by him, totally involving over 8 grammes of cocaine by narcotic content. It is well known that the guidelines for these offences are based on the guidelines set out in the case of Lau Tak Ming where up to 10 grammes of narcotic can receive a sentence of up to 5 years’ imprisonment.

19.  Here it is about 8 grammes in total. What I shall do is impose sentences in respect of each of these offences and then adjust for the overall totality. In passing these sentences, I also bear in mind the defendant’s pleas of guilty and they will lead to a reduction of one-third in respect of each offence.

20.  In respect of the first offence of possession of dangerous drugs, after the deduction for the plea of guilty, there will be a sentence of 9 months’ imprisonment. As far as the second offence is concerned - that is trafficking in the quantity of 6.18 grammes of cocaine - what I have decided is I shall take a sentence of 48 months’ imprisonment and reduce that to 32 months’ imprisonment for the defendant’s plea of guilty. On the third offence, after deduction for the plea of guilty, there will be a sentence of 9 months’ imprisonment. On the fourth offence, after deduction for plea of guilty, there will be a sentence of 6 months’ imprisonment. On the fifth offence, after deduction for plea of guilty, there will be a sentence of 24 months’ imprisonment.

21.  Having regard to the overall totality for these offences, I have decided they shall run concurrently, which will be a total of 32 months’ imprisonment.

22.  Unfortunately, in this case, the defendant also has 6 months’ imprisonment by way of a suspended sentence, which must be activated. There is no reason put before me in this case why I should not activate that sentence in whole. So, I order that the 6 months’ sentence of the suspended sentence be activated and be served consecutively to the existing sentences, and that leads to an overall total of 38 months’ imprisonment.