HKSAR v. WU WING HUNG

DCCC 692/2023

[2024] HKDC 952

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 692 OF 2023

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REASONS FOR SENTENCE

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1.  D1 was jointly charged with other three defendants one count of possession of apparatuses fit and intended for the inhalation of a dangerous drug, contrary to section 36(1)  and (2)  of the Dangerous Drugs Ordinance, Cap 134 (Charge 1)  ; and one count of possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134 (Charge 2). She was further charged with failing to surrender to custody without reasonable cause, contrary to section 9L(2)  and (3)  of the Criminal Procedure Ordinance, Cap.221 (Charge 4). She was convicted upon her own plea and admission of the facts. Her case was last adjourned for a DATC report.

FACTS

2.  On 13 December 2022 at around 1929 hours, Police entered Room 1106 of M1 Hotel.  D1, D3 and other two males were inside the Room. Police revealed their identity and produced a search warrant.

3.  Upon search the following items were found on the TV cabinet:-

(a)  One yellow plastic bottle and one plastic cover containing a total of 9.32g of a solid containing 7.04g of cocaine;

(b)  3 glass bottles, 2 of which fit and intended for the inhalation of a dangerous drug, containing a total of 146 ml of a liquid containing traces of cocaine;

(c)  4 lighters;

And one plastic bag containing 23 empty plastic bags next to a safe placed under the TV cabinet.

4.  At the material times, all defendants had in their possession the two inhaling devices fit and intended for the smoking or inhalation of cocaine.  And all defendants had in their possession of the said 146 ml liquid which containing traces of cocaine. 

5.  D1 failed to appear in the District Court for plea on 16 November 2023, warrant of arrest was issued and executed on 23 January 2024 when she was outside the District Court.  Under caution, D1 explained she was admitted to hospital at the material time for a month.  She claimed that she had sent the medical note to Court by mail, but no such medical note was received by the Court.  D1 was admitted to Kwai Chung Hospital from 8 November 2023 and discharged on 4 December 2023.

MITIGATION

D1

6.  The defendant aged 33, a widow, living with her boyfriend.  She received education up to Form one, used to be a saleslady with an income of around HK$15,000.  She is financially dependent on her boyfriend.

7.  The defendant had 5 previous convictions, 4 related to dangerous drug. She was sentenced to DATC for 3 times between 2014 and 2017.  She was last discharged from Nei Kwu Correctional Institution on 29 April 2019.  She committed the present case while she was on court bail for WKCC 4066/2022.  She has failed to surrender to custody with warrant executed on two previous occasions (WKCC 3814/2017 & WKCC 4066/2022).

8.  The defendant admitted to Kwai Chung hospital on 8 November 2023, thus not able to attend court on 16 November 2023, she was discharged on 4 December 2023.  She voluntarily attend court on the next mention on 23 January 2024, resulting in the execution of the warrant.  She has been remanded in jail custody since then.

9.  The defendant agrees the content of her DATC report, except her marriage was a valid one.  She relates in her DATC report that after her release from DATC in April 2019, she mainly hooked on Cocaine and Ice.  She consumed her last dose of Ice and Cocaine whilst she was on court bail in January 2024.  The defendant was remanded since 23 January 2024; the medical officer is of the opinion that she is no longer a drug dependent.  Thus, she is considered not suitable for admission to a DATC.

SENTENCE

Charge 1 & 2

10.  Subject to section 54A of the Ordinance, the maximum sentence for possession of apparatus is 3 years’ imprisonment provided by section 36(2)  of the Ordinance, and any person in possession of a dangerous drug, convicted upon indictment, is liable to a fine of one million and to imprisonment for 7 years.  

11.  D1 jointly with other 3 persons in possession of the apparatuses and the said 146 ml liquid which containing traces of cocaine. Taking into account of the number of apparatuses, the quantity and the nature of the dangerous drug concerned, I considered the appropriate starting point of each count to be 6 months’ imprisonment, to run concurrently.  She committed the present offence while on court bail, for this aggravating factor, I increase the starting point by 1.5 month to 7 months. 

Charge 4

12.  Any person who failed to surrender to custody as appointed without reasonable excuse, on conviction upon indictment is liable to a fine of any amount and to imprisonment for 12 months.

13.  D1 admitted to hospital on the hearing date, though having a reasonable cause for her absence on the hearing date, failed to surrender to custody upon discharge in December 2023 and did not observe her reporting condition since then.  She surrendered to court on the next hearing date.  However, she has failed to surrender to custody on 2 previous occasions. This is not the first time she failed to surrender to custody, I do not accept that she did not know she needed to surrender as soon as possible upon discharge from hospital and observed her bail conditions.   I consider the appropriate starting point for this offence to be one of 4.5 months’ imprisonment. 

14.  She is entitled to 1/3 discount for her plea but I do not consider there to be any further mitigating factors.  As stated above, Charge one and Charge two are part and partial the same transaction, the sentence of these two charges are to run concurrently.  Whereas Charge four is a separate transaction and of different nature, taking into the totality principle, the sentence of Charge four is to run consecutively with the other two charges.

ORDER

Charge 1 sentenced to 5 months’ imprisonment,

Charge 2 sentenced to 5 months’ imprisonment,

Charge 4 sentenced to 3 months’ imprisonment.

The sentence of charges 1 & 2 to run concurrently but consecutively with charge 4, i.e. 8 months in total.