HKSAR v. LEE YIP TONG

 DCCC452/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 452 OF 2009

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Reasons for Sentence

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1.  The defendant pleaded guilty to one each count of trafficking in Ice and of possession of apparatus fit and intended for inhaling a dangerous drugs and was convicted accordingly.  Here are the reasons for sentence.

The Prosecution’s case

2.  At about 5 pm on 30 March 2009, a party of police officers raided the premises at Room 2903, Lok Moon House, Tsz Lok Estate in Tsz Wan Shan.  Inside the premises, police found the defendant and other persons.  Inside a drawer in the toilet, the police found the following items:

(1)  a bottle with 2 straws inserted containing methamphetamine in liquid form;

(2)  another bottle with 2 straws inserted containing methamphetamine in liquid form;

(3)  a third bottle with 2 straws and a glass tube inserted containing methamphetamine in liquid form.

3.  Under caution, the defendant admitted that the above bottles belonged to him.

4.  Subsequently, the police located the following items in one of the drawers of a wardrobe:

(1)  7 small transparent resealable plastic bags containing dangerous drugs;

(2)  3 transparent resealable plastic bags with traces of dangerous drugs;

(3)  a bunch of empty - I was told - 10 empty transparent resealable plastic bags; and

(4)  an electronic scale.

5.  Under caution, the defendant admitted that the Ice belonged to him.  The defendant, when being interviewed under caution, admitted that the bottles belonged to him and these bottles were used for inhaling Ice.  He had used the bottles to inhale Ice twice.  He bought the 7 bags of Ice for his own consumption and also for selling to others to earn some money.  He kept the 7 bags of Ice inside the drawer.

6.  Chemical analysis revealed that the 3 bottles contained a total of 381 millilitres of a liquid containing traces of methamphetamine; and one, Exhibit DD-1, also with traces of N, N-dimethylamphetamine.  The 7 bags, that is Exhibit DD-4 to DD-10, contained various grammes of a crystalline solid, ranging from 0.22 gramme to 2.36 grammes, containing methamphetamine hydrochloride ranging from 2.29 grammes to 0.22 grammes.   The total quantity of methamphetamine hydrochloride is 4.78 grammes.  The other 3 transparent resealable bags contained traces of a solid containing methamphetamine.

Mitigation 

7.  The defendant is currently serving a 12-month imprisonment term for the offence of trafficking in Ice which, it is believed, was committed in late September 2008.  He was sentenced for that offence in May this year.  The defendant lived in the captioned premises since March this year.  The flat does not belong to him.  His family is now in court to show their support.  The defendant has written a mitigation letter to plead for leniency.  The defendant committed the present offence because of his association of undesirable peers and family difficulties.

8.  He is a drug addict.  He bought the drugs in question for about $3,000.  Some of the drugs were for self consumption and some for selling to others.  The defendant claimed that the resealable plastic bags and the electronic scale did not belong to him.  Originally, it was submitted that 70 per cent of the Ice so seized was for his self consumption.  And eventually, the percentage for self consumption was reduced to 50 per cent which is accepted by the prosecution. 

9.  The defendant does not want to give evidence if a Newton enquiry is to be held.  Counsel for the defendant cited HKSAR v Wong Suet Hau and another [2002] HKLRD 69 for reference.

Sentence

10.  The defendant was an unemployed addict.  The substantial mitigating factor for the defendant is his guilty plea which allows him to have one-third discount of the sentence.  I notice that the defendant is aged 18.  I do not intend to call for any report under section 109A of the Criminal Procedure Ordinance as the offence of drug trafficking is an excepted offence.

11.  In the present case, the defendant claimed that 50 per cent of the Ice so seized was for his self consumption.  The percentage was not disputed by the prosecution.  Taking into account of the fact that the defendant is a drug addict, that part of the drugs was for his consumption and the factors to be considered as expounded in the Wong Suet Hau case, I accept to take this practical approach and would apportion 50 per cent of the dangerous drug for the purpose of trafficking in.

12.  That effectively means the quantity of Ice for trafficking in would be 2.39 grammes.  And the remaining 2.39 grammes of Ice would be sentenced on the basis of possession.  And for the latter portion, I would also take into account of the latent risk factor.

13.  The sentencing tariff for the drug Ice is clearly set down by the Court of Appeal.  For trafficking in Ice involving less than 10 grammes, the starting point is 3 to 7 years.  For the quantity of 2.39 grammes, I would take a lenient stance and take 3 years as the starting point.   With plea, the sentence for the trafficking portion would be reduced to 2 years.

14.  For the remaining half of the Ice for simple possession, I have considered the case HKSAR v Jarhia Singh, CACC96/2006, in which the appellant was convicted of possessing 6.82 grammes of Ice.  The appellant was sentenced to 15 months and the sentence was enhanced to 27 months for latent risk factor.  Because of his plea, the appellant was sentenced to an imprisonment term of 18 months. 

15.  Taking all factors into account, I would adopt 12 months as the starting point for this possession portion.  Taking into account of the latent risk factor, I would enhance the sentence to 18 months by adding 6 more months.  With one-third discount, the sentence for the possession portion would be 12 months.  Hence, for Charge 1, I would sentence the defendant to 3 years.

16.  As regards Charge 2, the usual sentence is an imprisonment term of 3 months after plea: see R v Law Sing [1996] 4 HKC 477 and HKSAR v Poon Chi Wai, HCMA491/2004.  The sentence could be adjusted upward if aggravating factors exist.  As the bottles were found in the toilet of the premises, there is no existence of aggravating factors.  I adopt 3 months as the starting point, and I still give one-third discount to the defendant for his plea. 

17.  Based on the principle of totality, I would make one month of this 2-month imprisonment term consecutive to the first sentence.  Hence, the total sentence for both charges is 3 years and 1 month, that is 37 months.

18.  I have also considered the last conviction of the defendant in May this year for which he was sentenced to 12 months.  The present offence was committed in March this year.  Had the defendant brought the present case forward, he might well be able to have a further discount.  Taking this factor and the totality principle into account, I would reduce the sentence by 3 months.  To conclude, I sentence the defendant to 34 months.