HKSAR v. Tse Sum Ho and Another

DCCC 669/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 669 OF 2015

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Reasons for Sentence

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1.The 1st defendant has been convicted after trial for one offence of trafficking in a dangerous drug.

2.At trial, he was prepared to admit possession of the drug, but he said it was for his own consumption; but he was in fact convicted of trafficking in that drug.

3.This defendant, Mr Tse, is a young man.  He is, according to his probation report, 20 years old.  He is of clear record.  I have obtained a probation report on him.  The probation report is fairly detailed.  It sees him as having grown up in a single-parent family, and in secondary school he turned, as it is described, wayward by engaging in nocturnal activities.  Parental supervision and discipline was loose.  He left school at 18 and was involved with people of poor background.

4.It appears that at around that time he became addicted to drugs, and in fact the accused’s elder brother was also a drug abuser and set a bad role model for him.

5.The defendant has a somewhat unfortunate but quite typical background for a person involved in these kind of offences. There are a number of letters of support for him.  One of interest is from his registered social worker, and from the detail of the report, it shows that the defendant is a person who is charitable and kind-hearted in nature, essentially; participated in activities and helping the homeless, and his involvement in that had effected a positive change in him.  The defendant has unfortunately involved himself in this kind of offence, but I do bear in mind his clear record to this point and his involvement in that kind of activity.

6.As far as sentence is concerned, the commission of offences of this nature is governed by guideline sentences.  The quantity here is just over 6 grammes of the drug methamphetamine hydrochloride, also known as “Ice”.  The possession of this quantity of narcotic puts the starting point for sentence of the court in the range of 3 to 7 years.  That figure of 3 to 7 years would be for trafficking in a quantity up to 10 grammes of the narcotic.

7.It has often been said that these guideline sentences are not necessarily a straitjacket, and based purely on a mathematical quantification, the starting point for sentence would be in the middle of that category and would put it in the range of 5 years’ imprisonment, which is a figure of 60 months.

8.The defendant is, in this case, a first offender, and I can take that as a mitigating factor, and also the other background information, in applying the guideline more flexibly.

9.Given that factor, I will take an initial starting point for the defendant’s sentence of 54 months’ imprisonment.

10.There is clear evidence in the case which I will not go into detail of now that the defendant is a drug abuser and an abuser of the drug which he had on that evening.  It has been said, again by the Court of Appeal, that that is a factor that can be taken into account in sentencing, and the defendant’s self‑consumption of a quantity of the drug that he had for trafficking can lead to a further deduction in sentence, and that deduction can be between 10 to 25 per cent of the original starting point.

11.I consider this is an appropriate case for such a deduction.  The defendant would almost certain consume a quantity of this drug.

12.I will take a figure in the region again of 20 per cent.  This will lead to a further deduction from the 54 months of 11 months.

13.This gives a final figure for sentence for the 1st defendant of 43 months’ imprisonment.

14.I now turn to the 2nd defendant.  The 2nd defendant has pleaded guilty from the outset to possession of a total of 1.9 grammes of the drug, methamphetamine hydrochloride.

15.He is aged 21.  He has a clear record.  He has what I can describe as a positive probation officer’s report.  I had originally asked for a urine test for this defendant.  The result has not so far been forthcoming.  However, the probation officer’s report has persuaded me that such a report may not be necessary for this defendant.  The report says the defendant learnt a hard lesson from the present incident and was determined to reform himself for disappointing his family.  They assess he has no drug addiction in the past.  He has available family support and no need for receiving counselling services.  Probation service with counselling service is considered not necessary for him at this stage and not required for the defendant.

16.That being the case, I consider that a financial penalty is the appropriate disposal for this defendant.  He has employment, and that should be maintained.

17.I shall impose a fine of $10,000.