HKSAR v. YIM CHUN PONG

DCCC 370/2021

[2021] HKDC 1642

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 370 OF 2021

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REASONS FOR SENTENCE

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1.  D2 is convicted on his own plea and agreement to summary of facts to a charge of possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134 (5^th Charge).

Facts

2.  On 28 October 2020, at around 0055 hours, police officer noticed another defendant, D1 getting out of a stationary taxi.  D1 returned to the taxi 5 minutes later and again got on the taxi from the offside rear door.  He was seen chatting with D2 who was in the nearside rear seat.

3.  Police intercepted the taxi and asked D1 and D2 to step out of the taxi. D1 then was found holding 3 mobile phones and a green bag was on his lap.  In the meantime, D2 was found holding in his right hand a tissue wrapping 5 transparent resealable plastic bags containing a total of 0.86 gramme of a solid containing 0.76 gramme of cocaine (E7).  2 mobile phones and cash of HK$25,382.7 were found in the sling bag that D2 was carrying. 

4.  Under caution, D2 said that E7 was cocaine, which he had just bought from D1 at a price of HK$1,600 for self-consumption.

5.  The police later arrested D1 and, under caution, D1 said that he had just started to “work” and that he had just sold 5 packets of “coke” to D2 for HK$1,600 and that all the drugs belonged to him.  D1 also told the police that cash HK$1,600 earned from D2 was in his right pocket of his pants.  The same was seized by the police from D1.

Criminal record

6.  D2 has 3 previous convictions, all relating to dangerous drugs, including 2 trafficking in dangerous drugs charges and 1 possession of dangerous drugs charge.  The last conviction was a trafficking in dangerous drugs charge convicted on 3 July 2020, for which he was sentenced to 38 months’ imprisonment.

Mitigation

7.  D2 is 35 years old.  He received education up to Form 3.  He was unemployed before the offence and he used to work as a transport delivery worker.  D2 was divorced in 2013 and has a 14-year-old daughter, who currently lives with her mother.

8.  Defence counsel submitted that, as D2 was in custody in relation to another case, that he wishes this court to impose a sentence which would allow D2 to be released forthwith.

Discussion

9.  This court had on the last occasion called for the DATC report on D2.  The officer preparing the report concluded that in view of the weak willpower of D2, the availability of the place in the DATC and taking into consideration that drug abuse is D2’s imminent problem, they suggest a period of compulsory drug addiction treatment coupled with intensive supervision would be beneficial to him and that he is suitable for admission to DATC.

10.  I have also been told by defence counsel and the officer preparing the report that D2 has evinced the intention that he does not want to go to the DATC.

11.  Before sentencing, this court has clearly considered all mitigation by defence counsel.  The defendant on this occasion was convicted of simple possession of dangerous drugs, the 0.76 grammes of cocaine. 

12.  From what is before this court, D2 was convicted on 3 previous occasions, all on drug-related charges, and on all these occasions, he was sentenced to imprisonment and he has not been to the DATC.  Imprisonment clearly has not helped him to quit his habit.  He was last convicted of trafficking in dangerous drugs and was sentenced to 3 years’ imprisonment and was released on 15 August 2020.  He committed the present offence on 28 October 2020, ie two and a half months after he was released, again of course due to his drug addiction problem

13.  It is clear that since he first took drugs in the year 2006, as he told the officer preparing the DATC report, and despite the 3 sentence of imprisonment, he was never able to quit the drug addiction habit.  This court took the view that it is highly unlikely that unless he quit the drug addiction habit, D2 would spend the rest of his life going in and out of prison.

14.  D2 has never been given the chance to go to DATC.  Considering his criminal records, the circumstances of this case, the recommendation in the DATC report, despite the suggestion by defence counsel, this court finds the most suitable sentence in this case is to make an order for DATC in respect of D2 for his conviction under the 5^th charge.

15.  D2 is therefore sentenced to detention in DATC for this case. Conviction is recorded.