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HCCC 389/2016
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 389 OF 2016
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| Before: |
Deputy High Court Judge S D’Almada Remedios |
| Date: |
15 December 2016 at 3.30 pm |
| Present: |
Ms Grace Chan, SPP of the Department of Justice,
for HKSAR
Mr David Rex Boyton, instructed by Francis Kong & Co, assigned by DLA, for the accused
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| Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT:
Defendant, you pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. You have admitted that on 5 January 2016, at Argyle Street near Portland Street, Mong Kok, Kowloon, you unlawfully trafficked in 82.53 grammes of a crystalline solid containing 78.51 grammes of methamphetamine hydrochloride. Methamphetamine hydrochloride is commonly known as ‘Ice’.
On 5 January, at about 2255 hours, whilst police officers were patrolling along Argyle Street, they saw you walking towards them. Upon seeing the officers, you immediately turned around and walked hastily away. The officers then went to intercept you and ordered you to stop. However, you then ran away and were seen throwing four resealable plastic bags onto the ground and into a flowerbed.
You were eventually apprehended and upon search, found inside your jacket pocket was a resealable plastic bag. The four plastic bags that you had thrown away were retrieved. In these total five plastic bags were the drugs which are now the subject of the charge. You were arrested and cautioned, however you had nothing to say. At the time of your arrest, you were found in possession of $45,652.50 and two mobile phones.
The estimated market retail value of the drugs at that time was $25,337.
You are now aged 37. You have 13 previous convictions; 12 of them were related to drugs. Three of them are similar, that is, of trafficking in dangerous drugs. Six are of possession of dangerous drugs. Two are for keeping a divan and one is for smoking dangerous drugs. You were last sentenced for the offence of trafficking in a dangerous drug in 2011. You were discharged from prison from that term on 2 March 2015. Therefore, nine months after you were released from custody, you committed the present similar offence.
You have been educated and completed Form 1. At the time of commission of this offence, you were unemployed. You are single and lived with your parents. You have pleaded guilty to this charge after 2 September 2016. That is after the Court of Appeal revised the discount in respect of sentence in the cases of CACC 418/2014 and CACC 327/2015.
This case was, however, committed to the High Court on 2 September, that is the exact same day as that judgment was handed down. Therefore, that judgment had in fact not yet been handed down when you were committed to the High Court. Mr Boyton, your counsel, therefore asked for the full one-third discount to be afforded to you and Ms Grace Chan, Senior Public Prosecutor, has no objection to this full one-third discount being granted to you. Your plea of guilty was indicated to the listing judge when the case was transferred to the High Court.
Initially, in Mr Boyton’s mitigation, he asked the court to take into account that much of the drugs were for your own consumption and it was clear, certainly from your previous convictions and from your urine test report submitted by the Chief Superintendent at Lai Chi Kok Reception Centre, that when you were admitted to Lai Chi Kok the day following your arrest, your urine showed a positive result for amphetamine which is a by-product of ‘Ice’.
Having heard Mr Boyton’s submission, I indicated to him that I had difficulty in accepting the mitigation that a substantial portion of the drugs was for your own consumption. Having stood down this case for a while for Mr Boyton to take instructions from you, Mr Boyton, upon resumption of this hearing, informed me that you were no longer submitting that a substantial portion of the drugs were for your own consumption.
I accept that you were a consumer of drugs but, of course, I reject the fact that you had a substantial portion of these drugs for your own consumption. In those circumstances, the usual guidelines apply in the trafficking of the amount of 78.51 grammes of ‘Ice’. The relevant guideline case for trafficking in ‘Ice’ was laid down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The tariff to be imposed after trial for the amount of ‘Ice’ between 70 and 300 grammes is a starting point of between 11 to 15 years’ imprisonment.
In this case, defendant, you have previous convictions for trafficking in dangerous drugs, the last two being quite recent, in 2006 and 2011. You committed this offence nine months after you were released from prison. In those circumstances, defendant, this is an aggravating factor calling for the enhancement of the starting point. I consider an appropriate enhancement to be one of 6 months’ imprisonment.
In the circumstances, the sentence point should be one of 11 years and 6 months’ imprisonment. You shall be afforded the full one-third discount, which is your strongest mitigating factor, for your plea of guilty. In those circumstances, you shall be sentenced to 7 years and 8 months’ imprisonment.
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