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DCCC 348/2014
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 348 OF 2014
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HKSAR |
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Mohamed P Shafik |
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| Date: |
6 June 2014 at 4.59 pm |
| Present: |
Miss Lai Ting-wai, Fontaine, Public Prosecutor of the Department of Justice, for HKSAR |
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Mr Melville Thomas Charles Boase, of Boase, Cohen & Collins, assigned by the Director of Legal Aid for the defendant |
| Offence: |
(1) Possession of apparatuses fit and intended for the inhalation of a dangerous drug (管有適合於及擬用作吸服危險藥物的器具) |
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(2) & (4) Possession of dangerous drugs (管有危險藥物) |
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(3) Possession of arms without a licence (無牌管有槍械) |
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Reasons for Sentence
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1. The defendant pleaded guilty before me to four counts of offence, two of which are possession of dangerous drugs; one possession of apparatus for the inhalation of dangerous drug; the other, possession of arms without a licence.
2. This is a case of police stop-and-search leading to the discovery of dangerous drugs, a stun gun, etc.
3. The defendant was stopped by the police on two occasions. The first was on the night of November 30, 2013 at a game centre in Wan Chai, where the police found on him a glass tube and a plastic tube which he admitted using them for inhaling drugs(the subject matter of Charge 1); 2.98 grammes of a crystal solid containing 2.93 grammes of methamphetamine hydrochloride (the subject matter of Charge 2); and a stun gun( the subject matter of Charge 3).
4. He was released on bail. About 10 weeks later, he was stopped by the police again when he was coming out of a flat in Wan Chai. This time he was found in possession of 2.52 grammes of a crystal solid containing 2.46 grammes of methamphetamine hydrochloride, 0.08 gramme of a solid containing methamphetamine and one tablet containing 12 milligrammes of diazepam (the subject matter of Charge 4).
5. Under caution, he said he had the drugs for his own consumption. As far as the stun gun is concerned, he told the police that he was a bouncer and he held onto the stun gun for self-defence.
6. The stun gun in question was examined by an expert. It was a functional stunning device. It worked by applying directly to the victim’s body and it could deliver at least 145,000 volts electric shock.
7. The defendant, aged 34, has four previous. One similar to the possession of arms without a licence and the rest are drug-related. The court was told that his previous arms conviction related to a toy pistol, and on that occasion he was fined $1,000.
8. Defence counsel takes me through briefly the defendant’s background, his job and his marriage. He had two children from his first marriage, a son, 19-year-old, and a daughter, 13-year-old. They are now being looked after by his mother. The defendant entered into another relationship with a young lady, and they had a young child, 1-year-old.
9. The defendant worked two jobs. Counsel said he worked as a cleaner at a bar during the day and at night time he worked as a security guard.
10. And the court is told that the defendant’s mother is in court, and she is diagnosed with breast cancer.
11. As far as the stun gun is concerned, counsel said it was a gift to the defendant by an American sailor. He had never used it and never had it for any criminal intent. But counsel agreed that he worked as a bouncer and had it with him for his own protection.
12. And counsel also submitted letters written by the defendant as well as his mother pleading for leniency.
13. For possession of dangerous drugs in the case of a drug abuser, the appellate court has said in Mok Cho Tik CACC165/2000 that - I quote:
“We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months.”
And the court went on to say:
“Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender, he can expect the starting point to be higher than it otherwise would be. The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”
14. The amount of drugs that the defendant found to have possessed certainly cannot be described as minute quantity and is the kind of quantity which falls within the range of 12 to 18 months as mentioned by the Court of Appeal.
15. It is clear from his record and from what defence counsel told me that the defendant is a long-term drug abuser. His first conviction of possession of drugs is back in 1998. And on these facts I take 18 months as the starting point.
16. Then I move on to consider the risk factor. Given the quantity of drugs and the fact that he is a drug abuser, and there is not much, in my view, the risk of some of it passing onto somebody else, and I therefore will not add anything for latent risk.
17. As far as the later offence of possession of dangerous drug is concerned, he committed it while on bail for the 1st offence of possession of dangerous drugs. And for the later drug offence, I also take 18 months as the starting point, and for the fact that he committed it while on bail, I add 3 months on top taking the starting point to 21 months.
18. For the offence of possession of apparatus for the inhalation of dangerous drug, I take 6 months as the starting point.
19. Now, I come to the stun gun. The defendant told the police it was a gift given to him by an American sailor. But he also told the police that he worked as a bouncer and he had it with him for his own protection. His job nature as a bouncer was to throw out trouble makers. I would say he would be ready to use it when necessary.
20. I have looked at some of the previous decisions on stun guns. In Li Hung Kwan CACC250/2002, I quote some of the examples mentioned there:
“In Wong Chuen Pong CACC579/1996, the stun gun could discharge 60,000 volts. The appellant pleaded guilty and claimed that the stun gun was used for self-defence. A sentence of 2 years’ imprisonment was affirmed.
In Lau Kwok Hung CACC551/1998, the appellant claimed that he possessed the stun gun for self-defence. A sentence of 1-year imprisonment on the guilty plea was affirmed by this court.
In Hung Chun Kit CACC579/1998, the appellant was sentenced to 2 years’ imprisonment after trial. Appeal on sentence was dismissed.
Hung Ting Chun, CACC164/1999, the appellant was in possession of a stun gun which could discharge 75,000 volts. He was in prison for 2½ years after trial. Appeal on sentence was dismissed.”
21. It is worth noting that in the instant case the stun gun in question could discharge electric shock of magnitude up to 145,000 volts, much more than any of the stun guns as mentioned in the above cases.
22. Taking into account the intended use of the stun gun by the defendant, the amount of voltage it could discharge, I take 30 months as the starting point.
23. Insofar as the mitigation is concerned, apart from his guilty plea, there is not any mitigation of substance. The defendant is entitled to one-third discount for guilty plea.
24. The sentence for each individual charge will become: Charge 1, 4 months’ imprisonment; Charge 2, 12 months’ imprisonment; Charge 3, 20 months’ imprisonment; Charge 4, 14 months’ imprisonment.
25. Taking into account the totality principle, I order that Charge 3 is to run consecutively to 2 months of Charge 1, 6 months of Charge 2, 8 months of Charge 4; the rest are concurrent. The total term is one of 36 months’ imprisonment.
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