HKSAR v Hui Hon Ming

DCCC 1063/2021

[2022] HKDC 1490

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1063 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of trafficking in a dangerous drug (Charge 1). On the application of the prosecution, Charge 2 that the defendant is also facing (ie. possession of Part 1 poison)  is ordered to be left on file, not to be proceeded with without the leave of the court.

2.  The facts can be briefly stated.  On 26 August 2021, around midnight, outside Ground Floor, 590 Shanghai Street, police officers spotted the defendant acting furtively and therefore intercepted him for inquiry.  Upon a body search, six transparent resealable plastic bags containing 8.43 grammes of methamphetamine hydrochloride were found wrapped in a white tissue paper inside the defendant’s drawstring bag.  At that time, he also possessed cash of around $1,000 and one mobile phone.  Under caution at the scene, the defendant said he bought the six bags of “Ice” for self-consumption. 

3.  At the subsequent video-recorded interview, the defendant stated he bought the six bags of “Ice” from Ah Lok whom he first met in a game centre. 

4.  The estimated retail price of the drug in question is about $5,900. 

5.  The defendant has four previous convictions, none related to dangerous drugs.  Mr Kan, counsel for the defendant, has submitted written mitigation submission and made oral remarks and clarification for the defendant in court. 

6.  The defendant is 38 years old.  He is separated with his wife since 2019.  He was living with his parents who are in their 60s before his arrest. The defendant received education up to Form 3.  He worked as a cook on part-time basis before he was arrested, earning around $5,000 a month. 

7.  In mitigation, Mr Kan accepts that the main mitigating factor is the defendant’s plea of guilty.  He also pleads that part of the dangerous drug was for the defendant’s own consumption. 

8.  In May 2021, the defendant fell and fractured his spine and he was admitted to hospital.  He was later discharged and prescribed with painkillers.  However, the medicine did not help easing the pain and he had difficulty in sleeping.  Therefore, part of the “Ice” in this case was for his own consumption to ease his back pain so that he could get some sleep. 

9.  Mr Kan submits that a starting point for up to 10 grammes of “Ice” falls within the band of 3 to 7 years’ imprisonment, citing HKSAR v Tam Yi Chun.  And insofar as the defendant’s role is concerned, it is said that he is merely a courier. 

10.  Counsel cited a case of the Court of Appeal where the amount of “Ice” involved in one of the charges, which is Charge 2, was 8.87 grammes of “Ice”, the Deputy High Court Judge took a starting point of 6 years for that charge. It is noted that the case is not much of assistance as the starting point for Charge 2 in the case was not the issue of the appeal.  Counsel invites the court to adopt a starting point of 6 years’ imprisonment for the present case. 

11.  Coming back to the own consumption point, counsel clarified that the defendant is only claiming a small portion (as against a significant portion)  for his own consumption.  Counsel stressed that under caution at the scene and in the subsequent video-recorded interview, the defendant told the police that the “Ice” was for his own consumption.  Moreover, urine test of the defendant in Lai Chi Kok was positive to “Ice”.  Counsel handed up a hospital discharge summary, proving his admission to hospital for a broken spine and a urine test of the defendant at Lai Chi Kok Reception Centre. 

12.  In his conclusion of mitigation, Mr Kan urged the court to adopt a starting point of 6 years’ imprisonment, reducing it by a 6 months’ discount for his own consumption.  Defendant is also entitled to one-third discount for his plea of guilty. 

13.  Trafficking in dangerous drugs is a very serious offence.  The dangerous drug in this case is commonly known as “Ice”.  The Court of Appeal has laid down sentencing guideline for trafficking of “Ice” in Tam Yi Chun as cited by defence counsel.  For trafficking of “Ice” up to 10 grammes, the band of imprisonment in the tariff is 3 to 7 years’ imprisonment.  The amount of “Ice” in this case was 8.43 grammes.  I am persuaded by defence counsel that in the circumstances of this case, including that the defendant has no previous convictions for drugs, 6 years’ imprisonment would be an adequate starting point. 

14.  The defendant claims that a small portion of the drug was for his own consumption in order to ease the pain for his broken spine.  Taking into account his recent admission to hospital for a broken spine before the arrest and the presence of amphetamine in his urine test at Lai Chi Kok, I accept that a small portion of the “Ice” would be for his own consumption.  I will therefore reduce the starting point by 6 months to 66 months.  I will further give him a full one-third discount for his plea of guilty. 

15.  For the above reasons, the defendant is sentenced to 44 months’ imprisonment.