HKSAR v. CHUNG KAI YIN

 DCCC534/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 534 OF 2009

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Reasons for Sentence

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1.  The defendant stands charged with one offence of trafficking in a dangerous drug.  He has pleaded guilty to that charge.  He has admitted the facts put forward by the prosecution.  These facts clearly establish the charge and I have convicted him accordingly.

2.  The charge shows the defendant trafficked in a drug known as methamphetamine hydrochloride in Fife Street in Mongkok on 13 May 2009.  The facts presented by the prosecution show the police were carrying out anti-drug duties in the Mongkok area.  There was a patrol in Fife Street.  They saw the defendant was wearing a shoulder bag.  They suspected him and searched the shoulder bag.  They found a white tissue containing 6 transparent resealable plastic bags.  The drugs were contained in those bags.

3.  The defendant was arrested for trafficking in dangerous drugs.  He gave an explanation that the “Ice” was given to him by an unknown male earlier on.  The male told him to take the “Ice” to the scene; someone would thereafter come to collect the “Ice” from him.  He said the male had promised to give him $300 as a reward and he committed the offence because he did not have a place to live and wanted to earn some money.

4.  There was later a video recorded interview.  The defendant said he was entrusted with the “Ice” by the male in the evening of the day in question; he was told to take the “Ice” to the scene and someone would collect it; and that no one ever turned up to collect the “Ice” from him.  He still had not received the reward.

5.  Analysis by the Government Chemist showed there was 8.18 grammes of a crystalline solid and that, in itself, contained 7.61 grammes of the methamphetamine hydrochloride, a salt of methamphetamine generally known as “Ice.”

6.  The defendant’s antecedents were put before the court.  He has a criminal record for theft and robbery and assault.  He has been on probation in 2002; Detention Centre in 2003; finally, Training Centre in 2005.  Otherwise, antecedents have produced that he had secondary school education up to Form 3; been a warehouse stock-keeper; unemployed when arrested; been in custody since his arrest.  He is single, has nowhere to live and is aged 21 now.

7.  Mitigation was put forward.  The defendant clearly accepts his drug trafficking; says he has been a drug addict for some time.  He was consuming “Ice”, about 0.6 of a gramme per day.  He spent considerable amounts of money on his habit, apparently, and he was prepared to act as a trafficker in order to help paying for drugs.

8.  There were 6 packets in this case.  I am told there were 2 large packets and 4 smaller packets.  He said that he was going to consume, himself, some of the smaller packets.  The figure put forward was 3 grammes from 1,800 and the total cost of the drugs themselves was estimated $5,400.

9.  As I have said, the defence say that of the 6 packets some of them were in smaller units.  They say that because part of the drugs were for self-consumption the court should recognise that in sentence, in accordance with the case of HKSAR v Wong Suet Hau.  The defence, in mitigation, looked at the general factors and said it was possible with a resumé of those factors to consider that the defendant himself may have had for self-consumption a portion of the drugs.

10.  I did point out to defence counsel that at the time when the defendant was interviewed about this, certainly under caution; secondly, under his video interview, he never made any mention of this possibility.  He was going to be paid $300.  He was given the “Ice” and it was going to be collected by someone else.  One would have thought that if there was a side deal with the provider of the drugs, giving him some of the drugs, that he would have made that clear in his video interview.

11.  The other factors, however, allow for the possibility that a small proportion might have been for the defendant to consume himself.  The defendant certainly is on his own admission an addict.  The amount of drugs itself was within, apparently, his capacity to make some payment for.  The drugs were packaged in different ways and some, the defence say, were split down into an amount that a person may use for self-consumption.

12.  The position is whether what were described as a significant proportion of the drugs were for the defendant’s own consumption, because, if they are, then the court would adjust the sentence to reflect that fact that not all the drugs were for trafficking.  Even the defence in this case say it is a small portion of the drugs, some 3 grammes out of a total of 8 grammes in total in terms of the amount of total mixture.

13.   In determining the starting point here I am prepared to accept that a small portion - I am not going to define it any further than that - a small portion may have been used by the defendant for himself.  The starting point for sentence is clear from the authorities.  Up to 10 grammes of narcotic can lead to a sentence of between 3 to 7 years’ imprisonment.

14.  In this case I have decided, taking all the factors I have set out into account including the defendant’s relative youth and his rather disadvantaged background, I will take a starting point of 54 months’ imprisonment.  I will certainly take into account the defendant’s plea of guilty and reduce that by one-third, which I calculate to be 18 months, leading to a final sentence of 36 months’ imprisonment.