HKSAR v. YU KAM PO

DCCC 751/2017

[2018] HKDC 216

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 751 OF 2017

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two offences today: 1st charge, trafficking in a dangerous drug, particulars being they relate to a total of 5.37 grammes of cocaine (that is the narcotic value); 2nd charge, possession of a dangerous drug which is the drug methamphetamine hydrochloride, commonly known as “Ice”.

2.  Defendant, who is aged 24, has agreed the facts of the case, essentially a stop and search.  On 13 May 2017 seen by police and stopped outside the Long Ping MTR Station, he was searched.  Inside the left pocket of his jacket, there were 38 plastic bags containing what was 7.57 grammes of a solid, the narcotic content of that being 5.37 grammes of cocaine.  That is the figure I am concerned with today.  He said that cocaine was for his self-consumption.

3.  On a search at the Yuen Long Police Station, a plastic bag containing the “Ice” was found, and that was a total of 0.99 grammes of that substance.  Again the defendant said that drug was for his own consumption.

4.  Defendant’s antecedents have been agreed.  As I have already said, he is 24 years old.  His background: educated to Form 2 level, unemployed at the time of his arrest, no significant medical history, married with a daughter, living with his wife and daughter at relatives’ address, I am told.  In his antecedent statement, he said he had been a drug addict since the age of 17.

5.  The criminal record shows offences for which he was placed on probation in 2006 and 7.  More recently, on 17 October 2016, he was convicted of offence of assault occasioning actual bodily harm, sentenced to 2 months’ imprisonment suspended for 24 months.  Naturally, his conviction today relating to an offence on 13 May 2017 puts him in breach of that suspended sentence.  That is admitted.

6.  The defendant’s mitigation is based on the fact that he has pleaded guilty.  So he is entitled to a full one-third discount. He indicated that plea in a timely way.  He says that a proportion of the cocaine was for his self-consumption although the actual portion has not been articulated what has been a significant amount which of course is required for the court to take that into account in order to reduce the starting point for sentence.  It said a significant portion of the drug was for his self-consumption.  He would spend some four to five thousand dollars per month on drug and some $2,000 on “Ice”.  

7.  He has written a letter saying he is remorseful.  It said he has no drug-related convictions.  It said that the offences of trafficking and possession were committed at the same time and can be, although they could be consecutively served, they can be served concurrently in order to reach a correct overall total for the final sentence.

8.  As far as the suspended sentence is concerned, it is said that is for an unrelated offence and was in fact imposed in 2016. So even by the time of today, a fair portion of the suspension period has already elapsed.

9.  Taking these factors into account, firstly, to determine the starting point for sentence on the first two charges, the 1st charge, the charge of trafficking in a dangerous drug is clearly the most serious of the two, relating to a figure of slightly in excess of 5 grammes of cocaine.  The determining authority that determines the guideline sentence for cocaine is the same as that of heroin which is the case of Lau Tak Ming, and this case falls within the category of up to 10 grammes which is a first sentence which should range between 2 to 5 years’ imprisonment.  So I must determine starting point for sentence on that band.

10.  Taking into account largely the quantity of drugs and possibly also the defendant’s background, it would appear to me that the quantity of drugs places this towards the middle of that band of sentencing.  I will in fact take a starting point for sentence of 39 months’ imprisonment for that.  I do take into account that the defendant may well have used a significant portion of this drug for his own consumption.  For that, deduction can range between 10 to 25 per cent.  I shall in fact take a reduced figure in the region of 10 per cent of that.  What I shall do in fact is reduce the figure for the starting point for sentence to one of 36 months.  The defendant is entitled to one-third discount from that figure. That leads to a final figure of 24 months’ imprisonment on Charge 1.  

11.  The 2nd charge, this is the defendant’s first conviction for possession of a dangerous drug.  A starting point for sentence for possession of a dangerous drug simpliciter can range up to 18 months’ imprisonment.  I take a starting point of 15 months’ imprisonment, reduce that to 10 months’ imprisonment for the defendant’s plea of guilty.

12.  Naturally, these offences were committed at the same time and relate to this consumption by the defendant of what looks like a cocktail of drugs, and he in fact said he had been consuming the “Ice” for longer than the cocaine.  I take that into account here.  I think the correct overall total for sentence means that the sentences on Charges 1 and 2 can be served concurrently.  So on Charges 1 and 2, the total sentence shall be 24 months’ imprisonment. 

13.  There is of course the suspended sentence.  That should be activated if it is in the interest of justice.  I do take into account the period with which we are into the activation, the period which we are in of the activation period of the suspended sentence.  I do take into account the length of the period into the activation period of the suspended sentence and also this is a separate and unallied offence.

14.  What I will order is 1 month of that sentence to be served consecutively to the existing sentence and the other month concurrently.  This gives an overall sentence for these offences of 25 months’ imprisonment.