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DCCC406/2010
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 406 OF 2010
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Before:
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H H Judge Tallentire
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Date:
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14 June 2010 at 9.48 am
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Present:
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Miss Chan Sze-yan, PP, of the Department of Justice, for HKSAR
Mr Lee Chi-wai, Norman, of Peter K H Wong & Co., assigned by the Director of Legal Aid, for the Defendant
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Offence:
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(1) Trafficking in a dangerous drug (販運危險藥物)
(2) Trafficking in dangerous drugs (販運危險藥物)
(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. Defendant, you pleaded guilty to two offences of trafficking in dangerous drugs, each contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134, and to a single offence of possession of arms without a licence, contrary to section 13 of the Firearms and Ammunition Ordinance, Cap.238.
2. You admitted the brief facts and I convicted you.
3. The brief facts were as follows.
4. At about 1.28 am on 8 February last, you were observed leaving Room 2415, Block 3, Po Tin Estate, Tuen Mun. Police officers intercepted you and took you back to the flat.
5. Upon search, they found on top of a cabinet a quantity of suspected dangerous drugs, that was “Ice”, and midazolam tablets (Exhibit 1). Also they found a number of empty plastic bags, a pair of scissors, an electronic balance and $10,483.60. This was Charge 2.
6. An air pistol (“E2”) and some ball bearings were also found from a black shoulder bag - Charge 3.
7. A small packet of suspected “Ice” (“E3”) was found in your left front pocket, which is Charge 1.
8. Interviewed under caution and recorded on video, you admitted E1 and E3 were “Ice” and midazolam tablets bought from one “Ah Lung”. The “Ice” cost $3,200 and the midazolam $40 per tablet. You admitted E1 and E3 were for your own consumption, but you would share them with your friends in the neighbourhood. You admitted E2 was purchased in Ap Liu Street, Sham Shui Po, for $500.
9. E1 was found to contain two plastic bags containing 6.77 grammes of crystalline containing 6.41 grammes of methamphetamine hydrochloride and five foil packs containing
35 tablets containing 0.5 grammes of midazolam.
10. E3 was one plastic bag containing 2.18 grammes of a crystalline solid containing 2.02 grammes of methamphetamine hydrochloride.
11. Upon examination by a forensic expert, E2 was found to be within the legal definition of “arms” under the Firearms and Ammunition Ordinance, Cap.238, the Laws of Hong Kong. E2 was capable of discharging a 4.55 millimetre calibre ball-bearing projectile with muzzle energy at 2.46 joules.
12. You admitted 10 previous offences, three of which were drug-related on seven previous occasions. As you claimed that some of the drugs would have been for self-consumption, I adjourned the case and called for a DATC report to assess your status.
13. That report concluded that you were no longer drug dependant, having been remanded in custody for about 4 months. The logical conclusion therefore is that at the time of the offence, you could well have been a drug dependant. I am prepared to give you the benefit of the doubt on that matter.
14. Mr Lee informed me that you accepted the DATC report and proceeded to enter mitigation.
15. He stressed that you would have used some of the dangerous drugs yourself.
16. Mr Lee pointed out the tariff to be some 3 to 7 years, quite rightly so, the quantity of “Ice” being 8.43 grammes. He produced some authorities which were extremely helpful, one of which involved a very similar quantity of “Ice” which is slightly smaller, where a starting point of 5½ years had been adopted.
17. In respect of the small quantity of midazolam, he suggested and provided authority to this effect that the sentence for the “Ice” should be held to encompass that for the less serious drug. I accept and agree with that approach.
18. In respect of the third offence, which was a single air gun, he pointed out it was just over the permitted limits. As I understood it, the prosecution accept that it was towards the lower end of the scale in terms of power.
19. I turn now to the sentence.
20. I do accept from the mitigation, the contents of the DATC report, the facts and the nature of the dangerous drugs that a certain quantity would have been for self-consumption. It may be stating the obvious, but the percentage is impossible to estimate. Also I accept that the sentence for midazolam should be covered by that for the “Ice”.
21. In respect of the single air gun, it does appear to be just over the permitted strength, and there is no suggestion that it had or would be used in the commission of any crime.
22. My approach has been to treat the amount of “Ice” encompassed by Charges 1 and 2 as one amount for the purpose of sentence, returning sentences which are concurrent. The total amount of “Ice” involved is 8.43 grammes.
23. On Charge 1, I took as a starting point of 3 years’ imprisonment, reduced to 2.
24. On Charge 2, to give effect to what I have just said, I took as a starting point 5½ years’ imprisonment, reduced by
6 months because of the concept of self-consumption to 5 years.
25. Additionally you have pleaded guilty, so therefore you are entitled to and will receive a further one-third discount from that sentence.
26. Therefore the sentence is 40 months’ imprisonment concurrent to the 2 years on Charge 1.
27. On Charge 3, relating to the single air gun which was of relatively low strength and could not have been said or intended to be used in any crime, I took as a starting point
6 months’ imprisonment, reduced to 4.
28. To give effect to the principle of totality, 2 months of that will be served concurrently with the 40 months imposed on Charges 1 and 2, and 2 months will be served consecutively.
29. That is an overall total of 42 months’ imprisonment; that is 3½ years.
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Tallentire |
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District Judge |
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