HKSAR v. LUI WAI CHIU

DCCC 453/2017
[2018] HKDC 67

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 453 OF 2017

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REASONS FOR SENTENCE

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Introduction

1.  The defendant pleaded guilty to one count of trafficking in dangerous drugs – the amount he trafficked is 2.88 grammes of a crystalline solid containing 2.83 grammes of methamphetamine hydrochloride, commonly known as “ice”.

2.  In the afternoon on 25 February 2017, the defendant, travelling by train from the Mainland, arrived here at the Hung Hom Through Train Station checkpoint and was stopped by customs officers for a baggage check.

3.  The customs officers searched through the defendant’s jacket that he was wearing at the time, and discovered in the upper right front pocket the drugs in question which were put in 4 separate ziplocked bags. Upon being questioned about the drugs by the officers, the defendant admitted they were “ice” and for his own consumption.

4.  In a subsequent interview with the customs officers, he told them how he came into possession of the drugs. He said he bought it from a man in a park in Jordan area in Hong Kong the previous Christmas. As he didn’t use drugs very often, he left it in his jacket’s pocket and had forgotten all about it. On the day of offence, he made a day-return trip to the Mainland and just grabbed the jacket leaving home.

5.  On the day for plea and sentence, after having convicted the defendant, the court confirmed it with the Defence counsel that the defendant no longer insisted on his forgetfulness about the drugs.  

6.  The defendant, aged 48, has 7 previous convictions none of which relating to drug offences, and his last conviction is for burglary in 1994, which means he had been out of trouble for at least 23 years.

7.  Counsel for the defendant submitted that all the drugs were for the defendant’s own consumption, but on the evidence before the court, for example, the lack of positive drug test, the lack of previous conviction of any drug offence, plus his admission of being an occasional “ice” user etc., which seemed to run contrary to the defendant’s claim. Counsel explained for the lack of urine test because the defendant was admitted to bail rather than remanded in custody after his arrest; only in the latter case, would the authority concerned conduct drug test on detainees.

8.  The court indicated to the Defence its difficulty in accepting their claim in view of what was before the court then. Having taken further instructions from the defendant, counsel said the Defence would not call any evidence but ask the court to adjourn the matter for 3 weeks for a urine test to be conducted on the defendant while remanding him in custody. It was under these circumstances a urine test was obtained and also a background report on the defendant for good measure.

9.  The urine test shows positive on amphetamine; in the background report, the defendant recounted his drug history saying that he started abusing drugs in his teens, quit it thereafter for a rather long period of time, then got back into the bad habits in 2013 when he was stressed beyond words as a result of having to look after his sick mother who eventually died of cancer in the end of 2013.  At the peak, he said, he used “Ice” one to three times a day at home alone at the cost of about $500 a week.

10.  The defendant repeated once again in the background report that he had forgotten about the drugs in his jacket, but today counsel for the defendant told the court that his client retracted that statement.

11.  I have doubt about his self-consumption claim but on the information before the court, I cannot rule out the possibility of it, so the benefit of the doubt goes to the defendant. What I’ll do is to give him a 25% discount on top of the usual one-third for a plea of guilty.

12.  There are sentencing guidelines for this type of offence, for trafficking up to 10 grammes of “ice”, the usual term for consideration is one of 3 to 7 years.

13.  Given the amount (2.83 grammes) that the defendant trafficked, I take 49.5 months as starting point, reduce half a month for his donation to the Oxfam (Total: $14,400 - $80 a month over 15 years), then by 25 % to take into account of his self-consumption claim, and then a further one-third discount for his timely plea of guilty. The starting point is thus reduced to 24 months.

14.  As there is nothing to reduce the sentence any further, the defendant is therefore sentenced to 24 months’ imprisonment.