HKSAR v. SUN WAI MAN

HCCC 48/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 48 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: I have to sentence you for the simple possession of dangerous drugs. The drug in question was “ice” and you were caught in possession of 12.58 grammes.

Your plea of guilty is tendered on the basis that it was for your own consumption and that you had long been addicted to “ice”, and the reports tell me and the convictions bear it out, that would be since the mid-90s.

I was obliged to call for a DATC report. That tells me that in the opinion of the assessing officer that he regards you as no longer drug dependent, hence you are not suitable for DATC. You had been to DATC back in 1995, it was not a success.

What complicates your case is this, on 21 November of 2013 you were sentenced to a total of 18 months’ imprisonment. That was 8 months for the simple possession of “ice”, 5 grammes of it, 12 months concurrently for trafficking in a dangerous drug, 2 months consecutively for driving without a driving licence and 4 months consecutively for failing to surrender to custody without reasonable cause. The sentences followed pleas of guilty.

The thrust of the mitigation advanced today is this, that if this case of possession had been dealt with at that time then most of or maybe even all of the sentence would have been concurrent. I judge that to be a point well made.

Basically, a starting point, given your record, of 18 months’ imprisonment, reduced down to a year for a plea of guilty is what would be expected if the case stood alone, isolated from these other matters.

My view would be that if you had been sentenced to that 12 months’ imprisonment at the time when you received the other imprisonment in November of 2013, half of it would have been overlapped, half of it would have been consecutive, making that then a sentence in all of 2 years and not 18 months. So I could achieve that result by passing a sentence of 6 months’ imprisonment upon you now.

I am told and I have no reason to doubt, that you had finished serving those sentences which were passed in November of last year by 29 August of this year. So looking at the usual remission if you have behaved yourself, if I passed a sentence of 6 months today you would serve another month in custody and the real question for me is should I make you serve that month in custody now or should I pass a sentence that would let you have your liberty today. That sentence would be one of 83 days. We know that because the CSD officers in court, with their usual help and expert knowledge in these matters, tell us that that is the case and they are always right in my experience.

I do not forget that until the hearing on 30 October this year, in other words 13 months after the commission of the offence, you had been facing an allegation of trafficking in these drugs in question here. That would have produced a starting point in excess of 7 years’ imprisonment. You are a man that has been convicted of trafficking before and sentenced to long terms; you served 8 years in 1998. The prospect of facing a long term of imprisonment must, of course, have been an unpleasant one when in fact the evidence on the papers was not there to convict you of the trafficking. The fact is the prosecution authorities had got badly mixed up over just what their approach should be to how much “ice” a seasoned addict like you takes a day. That was squarely their fault. So that is something I take into account when deciding whether you need to serve the last month.

The other thing I consider is this, it is mostly a matter of chance with long-term drug addicts such as yourself how many charges of simple possession you face, because the reality is rehabilitation has not worked and the whole mischief of the addiction means that you do not stop taking the drug.

Bearing in mind those two factors, I shall pass a sentence of 83 days. That allows you your liberty today.

I suspect you might have been a bit lucky and it is up to you what you do with the rest of your life, but you walk free from the dock with no physical addiction to the “ice”: so do the right thing.