HKSAR v. Fan Chi Waic

DCCC 90/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 90 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to three offences in this matter.

2.Two of those are possession of dangerous drug, and the third one is possession of apparatus fit and intended for the inhalation of a dangerous drug.  The second charge relates to a quarter of a gramme of cannabis in herbal form.  The third charge relates to 6.67 grammes of methamphetamine hydrochloride and 11.08 grammes of cannabis in herbal form, and the fourth charge relates to an inhaling device for inhalation of the methamphetamine.

3.The defendant has agreed the facts of the case and I have convicted him.

4.The facts of the case show that the offence occurred on the evening of 6 August 2015.  Police raided a premises where the defendant was.  It says that on entering the premises, there were other people present.  A male and a female were on the sofa inside the living room.  There was then a search of the defendant was conducted and on him was found a hand-rolled cigarette containing suspected cannabis inside a Marlboro cigarette box, which was in a shoulder bag of the defendant.  That is the drug the subject of the second charge.

5.There then followed a search of the premises and on top of a small table in front of a sofa in the living room various items were found. 

6.Firstly, there was a green basket which contained a resealable plastic bag which contained the dangerous drug methamphetamine hydrochloride in the quantity of 6.67 grammes.  There was another resealable bag which contained 25 further resealable plastic bags, two straws and a lighter.

7.There were items for consumption of the drug. There was a plastic bottle with a straw and glass container, which contained traces of methamphetamine, and another container with a yellow straw.

8.In the open compartment under the top of the small table was a box which contained another plastic bag which contained 10.2 grammes of cannabis in herbal form.  There was another resealable plastic bag, which contained a further 0.88 grammes of cannabis in herbal form.  There were a pipe, cigarette paper, cigarette rolling tools, clips and a scale.

9.Those items that were found led to the third and fourth charges the defendant faces.

10.Various items showing the defendant and another lived there were found in the premises, such as photographs and insurance policies.

11.The estimated street value of the herbal cannabis seized, which is 11.33 grammes, was valued at $1,212.  The “Ice” was valued at $2,652.

12.The defendant has admitted those facts.

13.As far as the defendant’s background is concerned, he is a 42-year-old male.  He has worked as a casual worker, invested in a restaurant business in the past.  He is presently in custody. When he was at liberty, he was living with family.

14.As far as the criminal record is concerned, the defendant has convictions dating back to 1987.  He has served substantial sentences of imprisonment.  In 1993 he served a 10-year sentence of imprisonment for robbery.  In 2007 he served a 7-year imprisonment for trafficking in a dangerous drug. 

15.More recently, the defendant was convicted on 16 September 2015 and sentenced to a total of 2 years and 8 months.  2 years and 6 months of that related to the handling of stolen goods and the balance was the result of a breach of a suspended sentence.

16.As required by the Dangerous Drugs Ordinance, I obtained a report from the Drug Addiction Treatment Centre on the defendant. It sets out some useful background of the defendant and also of his addiction history.

17.He has got experience working in restaurants. He has worked as a cook, earning a good salary. 

18.Defendant started abusing Mandrax in 1987.  From 2003, he began to abuse cannabis and “Ice”, taking drugs daily, spending about $400 on each occasion.  The last dose of the drug that the defendant had taken was in August 2015 and that is because of his arrest for these matters.

19.He has never been to a Drug Addiction Treatment Centre and never participated in any voluntary residential drug treatment programme before.

20.We can conclude the defendant is a long-term consumer of drug.  He is described as having a drug dependency - in the past, anyhow - which has been interrupted by substantial periods of imprisonment.

21.His present sentence of imprisonment, his earliest date of discharge is 25 June 2017. 

22.The defendant has frankly admitted his involvement in these offences.  He has said he would stay away from dangerous drugs in the future and says the drugs were for his own consumption.

23.As far as the final conclusion is concerned, the clinical observations and medical examination said the defendant has, as a matter of course, had to stay away from dangerous drugs for more than 10 months since he is being remanded in custody.

24.The defendant is not a drug dependent and so therefore he is not suitable for admission to a Drug Addiction Treatment Centre.  So the defendant now does not have a physical dependency on drug.  He may well have psychological dependency, which may lead to a relapse on release, but that really is for the defendant to deal with on his own now, but it would appear that, unless this matter is dealt with, he will continue to be involved in criminal activities in future.

25.As far as sentencing the defendant is concerned, I must determine the appropriate sentence on each charge, determine an appropriate starting point, then discount that for the defendant’s plea of guilty and, finally, as the defendant is serving a lengthy period of imprisonment now, I must consider, as a matter of overall totality, whether any part of this sentence should be served consecutively or concurrently with that existing sentence, so as not to lead to an excessive incarceration.

26.Turning to the individual offences, when one looks at the second charge (that is, simple possession of a small quantity of cannabis in herbal form), of course, the sentences are at large for that offence, but generally cannabis is not seen to be as dangerous a drug as other forms of hard drug and sentences are generally lower.

27.On that charge, I will take a starting point of 6 weeks’ imprisonment, reduce it to 4 weeks’ imprisonment for the defendant’s plea of guilty.

28.On the third charge, there is possession of a larger quantity of drugs and drugs in two separate categories.  I am dealing with 6.67 grammes of methamphetamine hydrochloride and 11.08 grammes of cannabis in herbal form.  Certainly the drug methamphetamine hydrochloride is a substantial quantity of that drug. 

29.When one is dealing with such quantities of drug, the court has to approach sentence in the following manner.

30.Firstly, determine an appropriate starting point for the possession of these drug, which should lie, given the nature of the drug, between 12 months to 18 months’ imprisonment. 

31.That starting point may or can be increased to take account of the latent risk factor in order to arrive at a total sentence, the risk to society of this drug or any part of this drug being redistributed and falling into other hands.  This involves a risk assessment being made and the court must draw the correct inference from the circumstances of possession.  It is said there must be a sure risk of dissemination, a real risk.  Courts must approach that as a matter of common sense. 

32.Finally, when any enhancement has been added to the original figure, a discount of one-third is appropriate for the defendant’s plea of guilty.

33.Having regard to the facts of this case, it would appear to me that there is, again, a real risk of dissemination of the drug.

34.Given that there are ways by which the drug is to be consumed or methods of consumption in the flat; the quantity of the drug itself (certainly, the methamphetamine hydrochloride is a substantial quantity; many doses would be involved); the presence of large quantities of resealable plastic bags which could be used for distribution, it is clear to me there is a risk here of, certainly, at a minimum, social trafficking, and also other forms of redistribution.

35.Having regard to those factors, I shall approach the sentence on the third charge as follows. 

36.I will adopt an initial starting point for sentence of 18 months’ imprisonment.  Having regard to the latent risk involved, I shall increase that starting point by 9 months to 27 months’ imprisonment.  After this is discounted for the defendant’s plea of guilty, that will lead to a sentence of 18 months’ imprisonment.

37.On the fourth charge, there is the charge of possession of the apparatus fit and intended for the inhalation of the drug. 

38.I will take a starting point for sentence of 12 months’ imprisonment, reduce that to 8 months’ imprisonment for the defendant’s plea of guilty.

39.All these charges arise out of the same incident and will accordingly be served concurrently one to another, to a total of 18 months’ imprisonment.

40.There is now a question of overall totality to be considered because of the fact that the defendant is serving a sentence of 2 years and 8 months’ imprisonment and still has a substantial portion of that sentence to serve before his earliest date of release.

41.The offence of which the defendant was convicted in respect of the handling stolen goods was committed on Christmas Eve 2014 and sentenced in September of 2015. 

42.The offences with which we are concerned with today were committed on 6 August 2015, about a month before the defendant was sentenced for the handling of stolen goods.

43.Clearly, the offences are quite separate in time.  Nevertheless, if these offences had been considered together with the handling stolen good offences, it may well be a court would consider to some element of totality in relation to that.

44.The defendant must and can expect to serve a term of imprisonment for these offences, but I must be careful not to pass a sentence which results in an excessive period of imprisonment for this total criminality.

45.I shall achieve that by ordering that 12 months of the present sentences run consecutively to the existing sentence of imprisonment and the balance concurrently.