COURT: The defendant faced two charges on the Indictment.
Count 1 is for trafficking in a dangerous drug. The Particulars of Offence provide that on 3 March 2014, outside Tai Tin House, Pak Tin Estate, No 51 Pak Tin Street, Shek Kip Mei, Kowloon, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 14.73 grammes of a crystalline solid containing 14.26 grammes of methamphetamine hydrochloride, commonly known as “Ice”.
Count 2 is for possession of a dangerous drug. The Particulars of Offence provide that on 3 March 2014, at Room 1502, 15th Floor, Tai Tin House, Pak Tin Estate, No 51 Pak Tin Street, Shek Kip Mei, Kowloon, in Hong Kong, the defendant had in his possession a dangerous drug, namely 3.20 grammes of a mixture containing 1.95 grammes of heroin hydrochloride.
On 3 June 2015, the defendant pleaded guilty to Count 2. As regards Count 1, the defendant pleaded not guilty to trafficking in a dangerous drug, but admitted possession of the drug. The plea to simple possession on Count 1 was not accepted by the prosecution.
After a contested trial, the jury found the defendant not guilty for trafficking in a dangerous drug, and convicted the defendant of simple possession of a dangerous drug on Count 1.
The facts regarding Count 1 is straightforward. At 10.47 pm on 3 March 2014, two police officers stopped and searched the defendant outside the Ground Floor of Tai Tin House, Pak Tin Estate, Shek Kip Mei. When PC8709 searched the defendant, he found that something was hidden underneath the defendant’s pants. Upon request of the police, the defendant took out a piece of tissue paper from inside his pants. When the tissue paper was opened up, a transparent plastic bag containing suspected dangerous drug “Ice” was found inside.
Upon subsequent examination by the government chemist, the substance was confirmed to be 14.73 grammes of a crystalline solid containing 14.26 grammes of methamphetamine hydrochloride.
As regards Count 2, the Summary of Facts admitted by the defendant provides that after the stop and search, the defendant was then taken by the police to his home at Room 1502, Tai Tin House, Pak Tin Estate for a house search.
At 2308 hours on 3 March 2014, the police entered the said premises for a house search. At that time, a male, subsequently known as So Wai, was present inside the said premises. Upon the house search, PC8709 found a green and purple plastic box on a computer desk in the living room. In the upper compartment of the plastic box, there was one transparent resealable plastic bag containing suspected No 4 heroin (Exhibit P3) and 18 transparent resealable plastic bags. Beside the plastic box, there was a black electronic scale. The defendant was then arrested and cautioned. Under caution, the defendant said, “The No 4 heroin, the electronic scale and the plastic bags are for my own consumption and use respectively. So Wai has nothing to do with it.”
Exhibit P3 was later sent to the government laboratory for analysis. Upon examination, Exhibit P3 was found to contain 3.20 grammes of a mixture containing 1.95 grammes of heroin hydrochloride.
The defendant is 51 years old. He was born in mainland China and received education there up to primary 6 standard. The defendant was a hawker at the time of his arrest. The defendant has 13 previous criminal convictions, six are drug related, three of them for trafficking. The last conviction for trafficking in dangerous drugs was in 2002.
In this case, a Drug Addiction Treatment Centre Report has been obtained. Perhaps not surprisingly (since the defendant has been remanded in custody since 5 March 2014), the medical officer is of the opinion that the defendant is no longer a drug-dependent, and thus unsuitable for admission to a Drug Addiction Treatment Centre.
On Count 1, the defendant has been convicted of possessing 14.73 grammes of a crystalline solid containing 14.26 grammes of methamphetamine hydrochloride, commonly known as “Ice”. For this offence, I propose to take a starting point of 18 months’ imprisonment, and to enhance the sentence to take into account the “latent risk” factor by adding a further 12 months, making a starting point of 30 months’ imprisonment in all [see: HKSAR v Mok Cho Tik [2001] 1 HKC 261]. This must then be reduced by one-third to reflect the defendant’s admission to simple possession of the drug on 3 June 2015, which was not accepted by the prosecution. This results in a sentence of 20 months’ imprisonment on Count 1.
Regarding Count 2, the defendant has been convicted on his own plea of possessing 3.20 grammes of a mixture containing 1.95 grammes of heroin hydrochloride. For this offence, I would adopt a starting point of 12 months’ imprisonment [see: HKSAR v Lai Siu Ming, HCMA 238/1999 (Judgment of Deputy Judge McMahon, as he then was, dated 31 March 1999)]. This should be reduced by one-third to reflect the defendant’s guilty plea. This results in a sentence of 8 months’ imprisonment on Count 2.
I then have to give consideration to the totality principle in order to arrive at a correct overall sentence. The quantity of narcotics in the two counts should be looked at together to achieve a just overall sentence.
Taking all the circumstances into account, in particular, having considered the totality principle, in my view, a correct overall sentence for the two charges for which the defendant has been convicted should be 21 months’ imprisonment.
To achieve that result, the defendant is sentenced to 20 months’ imprisonment for possessing the drug, the subject matter of Count 1. The defendant is sentenced to 8 months’ imprisonment for possessing the dangerous drug, the subject matter of Count 2. 7 months of the sentence on Count 2 is to run concurrently with the sentence on Count 1, with 1 month running consecutively.
This results in a total sentence of 21 months’ imprisonment.