CRIMINAL CASE NO. 71 OF 2010
COURT: On 8 October 2009, the defendant’s behaviour at 12.52 am in Mong Kok Road brought him under suspicion during a police anti‑narcotics surveillance operation being carried out in the area. He was seen briefly to go into a building in Portland Street, and when he tried to hail a taxi outside, he was stopped and searched.
The police found the drugs that he has admitted possessing in the defendant’s trousers. The crystalline solid contained 26.44 grammes of methamphetamine hydrochloride (“Ice”), which had a street value of $19,755.
The defendant stated that this was for his own consumption. An expert’s opinion as to the daily consumption rate by users of “Ice” has been very helpfully obtained. From this it is apparent that a chronic methamphetamine abuser would commonly use between a quarter and one “stroke” - that is, a gramme bag - of “Ice” each day, which is therefore between 250 milligrammes and a gramme a day.
There is now before me a full and very helpful Drug Addiction Treatment Centre suitability report, from which it is apparent that the defendant’s 9 months in custody since his arrest have kept him well away from drugs, and as a result, he is no longer a drug addict so that he is not now suitable for admission to a Drug Addiction Treatment Centre.
But the defendant is no stranger to the courts, and he has come before the courts on no less than 13 previous occasions. The last occasion was on 23 November 2007, when he received a sentence of 2 years’ imprisonment at Kowloon City Magistrates’ Court.
Now, plainly, the defendant’s case has three aggravating features. The first of these is the comparatively large quantity in terms of the weight and value of the “Ice” in the defendant’s possession; the second is that this represents a classic example where the latent risk factor is high, which in turn calls for considerable enhancement of sentence; and the third is that this is the 13th conviction for drug‑related charges, mainly for possessing dangerous drugs.
Earlier sentences have had no deterrent effect whatever, and taking into account the latent risk factor of some of these drugs finding their way into the hands of others, there is a duty to protect the public from this defendant’s persistent offending (see: HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 at 833).
Now, without these factors in mind, I consider that a proper starting point would, in the ordinary course of events, have been a sentence of 18 months’ imprisonment. This would reflect what was said in HKSAR v Mok Cho Tik [2001] 1 HKC 261. In that case, 15.724 grammes of “Ice” was involved, and the court took a starting point of 18 months. Here, the amount is considerably more, and plainly, a month’s supply of “Ice” is not, to quote the court in Mok Cho Tik, “...a quantity of dangerous drugs which a bona fide user would normally have in his possession...”, for which the Court of Appeal stated a sentence in the range of 12 to 18 months’ imprisonment would be appropriate.
This is plainly not a case which can be treated as falling within the normal range of sentence, for the reasons I have given.
The Court of Appeal in Mok Cho Tik stated that:
“If an offender is a persistent offender, he can expect the starting point to be higher than it otherwise would be.”
Well, probation orders, fines, orders for detention at the Drug Addiction Treatment Centre, and a suspended prison sentence have all failed to deter the defendant. A series of short prison sentences have also failed to do so. Eventually, in 2007, consecutive sentences of 16 months and 2 years’ imprisonment were imposed, but even this has failed to act as a deterrent, as the defendant is now back before the court, not with 15 grammes, as in Mok Cho Tik, but with over 26 grammes.
Accordingly, I shall take a starting point of 2 years’ imprisonment.
There are other aggravating factors besides the defendant’s previous record of offences for possessing dangerous drugs. This was a very considerable quantity of “Ice” found in the street on you, and, as I have said, there is plainly a high latent risk factor to be taken into account.
Accordingly, I consider that the starting point should be enhanced by a further 12 months, making a 3-year starting point in all.
The only mitigation here is your plea of guilty, and that will be fully reflected in your ultimate sentence.
You must go to prison for 2 years.