HKSAR v CHENG YU YIN

DCCC 879/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 879 OF 2008

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of trafficking in 3.59 grammes of ice (charge 1), one charge of possession of 0.14 grammes of ketamine (charge 2) and one charge of possession of equipment fit and intended for the inhalation of ice, namely three bottles, each fitted with a straw (charge 3), contrary to sections 4, 8 and 36 of the Dangerous Drugs Ordinance, Chapter 134. 

2.  In summary on the 7th August 2008 the police executed a search warrant at Room 3803, Kwai Foon House, Kwai Fong House.  The ice and ketamine together with the equipment for inhaling the ice were found inside the living room, master bedroom and second bedroom.  At the police station the defendant, inter alia, admitted that the ice and ketamine together with the three bottles belonged to him and that three of the occupants, who were his friends, came to smoke ice, which he sold to them for $200 each.

3.  The Court of Appeal in Attorney General v CHING Kwok-hung [1991] 2 HKLR 125 laid down guidelines for trafficking in ice.  Where the quantity of narcotic is up to 12 grammes sentence upon conviction after trial is between 3 and 7 years imprisonment.  In HKSAR v CAPITANIA Edwin F. CACC 28/2004 the Court of Appeal accepted that the reference to 12 grammes was a typographical mistake and should read 10 grammes. 

4.  In passing sentence I take into account everything said on behalf of the defendant by Mr Wong.  Mr Wong submits that part of the ice was for the defendant’s own consumption.  Taking into account that the defendant admitted that the ice was for his own consumption and occasionally he would provide some to his good friends; that equipment for smoking ice was found on the premises and that the defendant has previously been sentenced to a drug addiction treatment centre (although I note his last conviction was for trafficking for which he received a sentence of 5 years imprisonment), I am prepared to accept that some of the ice was for his own consumption. 

5.  I am satisfied the proper starting point after trial for 3.59 grammes of ice is 4 years and 6 months imprisonment.  In deciding how much weight should be attached to the fact some of the ice was for the defendant’s own consumption I have considered the decision in      HKSAR v. WONG Suet-hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34. 

6.  Taking into account that possession of ice itself attracts a prison sentence and the clear latent risk that some of the drugs intended for self-consumption may nevertheless find their way into the hands of others        I am satisfied this makes only slight difference to the sentence to be imposed.  I reduce the starting point by 4 months to one of 4 years and     2 months imprisonment.

7.  For possession of ketamine and equipment for inhaling ice I am satisfied the proper sentence after trial on each charge is 12 weeks imprisonment.  I am further satisfied that the possession of a small amount of ketamine and the equipment does not increase the defendant’s overall criminality, in particular as I have taken into account that part of the ice was for the defendant’s own consumption.  I am therefore prepared to order the sentences to be served concurrent to each other and to charge 1.

8.  The defendant only pleaded guilty after the close of the prosecution case and is therefore not entitled to the full one-third discount usually given when entering a timely plea of guilty.  There are no guidelines as to what discount should be given in these circumstances.  I note for example in HKSAR v WONG Kam-tat [2002] 2 HKC 677 the court held that a 20% discount given when pleas of guilty were entered after the close of the prosecution case was, if anything, on the generous side.  In HKSAR v KAN Wai-man CACC 503/2003 the court held a reduction of one year from a sentence of 6 years was proper where the plea of guilty was entered after the close of the prosecution case.  This meant a discount of between 16% and 17%.

9.  Giving the defendant credit for his pleas of guilty he is sentenced on charge 1 to 3 years and 5 months imprisonment, which represents a discount of 18%. On charges 2 and 3 the sentences are reduced to 10 weeks imprisonment, which represents a discount of about 16%.           All sentences are to be served concurrently.  I am satisfied a total sentence of 3 years and 5 months imprisonment properly reflects the defendant’s criminality on the three charges.