HKSAR v. Chang Hoi Shing
Read the full judgment text of DCCC 979/2016 on BabelCite. This District Court judgment was delivered on 13 January 2017.
1. The defendant pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
Cites 6 cases
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DCCC 979/2016 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL ACTION NO 979 OF 2016 -----------------------------
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-------------------------------------- REASONS FOR SENTENCE -------------------------------------- 1.The defendant pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 2.The particulars of the offence are that on 1 August 2016, near Choi Lai House, Choi Yuen Estate, Sheung Shui, New Territories in Hong Kong, unlawfully trafficked in a dangerous drug, namely 29.6 grammes of a crystalline solid containing 7.49 grammes of methamphetamine hydrochloride, commonly known as “Ice”. Facts 3.The facts to which the defendant admitted show that at 1835 hours on 1 August 2016, PC 6347 and his colleague were on patrol at the vicinity of Choi Lai House, Choi Yuen Estate. At that time, PC 6347 saw the defendant walking towards his direction about 10 to 15 metres away. He was acting suspiciously, with his left hand pressing on the left front trousers pocket and looking to all directions. Feeling suspicious, PC6347 intercepted the defendant and demanded for a search. 4.He found a cigarette box from the left front pocket of the trousers of the defendant. The cigarette box contained two resealable plastic bags containing 7.49 grammes of “Ice”, the subject of the charge. 5.At that time, the defendant had cash, HK$110, but no mobile phone on him. 6.I have looked at the photographs depicting the dangerous drugs. 7.PC 6347 declared arrest on the defendant for drug trafficking. Under caution, the defendant said, “I found the packet of stuff in the park earlier. Thinking that it was cigarette, I picked it up for my own consumption.” During a subsequent video interview, the defendant said he did not remember the circumstances of finding the cigarette box. He had been addicted to “Ice” for five years. He was a CSSA recipient. 8.A house search was conducted at his residence in Ping Che. Nothing suspicious was found. 9.The retail value of the “Ice” found on the defendant was estimated to be HK$10,241.60 as at the date of this offence. 10.The defendant now admits that he possessed the “Ice” in question for the purpose of unlawful trafficking. Previous convictions 11.He has a total of seven previous convictions, including a conviction of an offence of possession of a dangerous drug in 1997 when he was aged 29, and for which he was fined $2,000. His other convictions relate to criminal damage and theft and driving a motor vehicle with alcohol concentration above the prescribed limit. The offence of criminal damage appearing on Part B of the record, as I am told, is not to be proceeded with against him. Mitigation 12.The defendant is aged 48. He was unemployed at the time of the arrest. He relies on CSSA in the sum of 2,200 per month. He was married in 2009, but has lost contact with his wife, who lives in China. His mother died in 2012 and he became depressed. He was diagnosed to have depression and had received treatment between 2012 and 2015 in Tai Po Psychiatric Centre for three times. He was released from the hospital a year ago and is not required to be on medication. He did not receive any such treatment during his remand in the Correctional Services Department. 13.Mr Lee further submitted that the defendant indulged himself in “Ice” and alcohol. His father passed away prior to the present offence. Mr Lee said that the defendant bought the “Ice” in question for $2,000 to $3,000. Mr Lee agreed that he acted on instructions to put forward that the bulk of the “Ice” in question is for the defendant’s own consumption and it is simply a bare assertion. 14.He referred this court to HKSAR v Tse Sum Ho DCCC 669/2015, in which the defendant, aged 20, was convicted after trial of trafficking in “Ice”. The sentencing judge said at paragraph 10 that:-
15.Mr Lee asked this court to do the same. Mr Lee was then asked if there were any other authorities from the Court of Appeal on which he relied in advancing his mitigation that this court should give a discount of sentence to this defendant for his assertion that the bulk of the “Ice” in question was for his own consumption. 16.Having spoken with the prosecutor, he mentioned HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121. I referred Mr Lee to HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34, also HKSAR v Tam Ling Yuen [2016] 2 HLKRD 572. 17.In the present case, the “Ice” has a retail value of more than HK$10,000. However, the defendant, a CSSA recipient, receives only 2,200 a month. There was no drug paraphernalia found on him or in his residence. As I am not prepared to accept that the bulk of the “Ice” is for the defendant’s consumption, I asked Mr Lee if he would adduce further evidence. The matter was stood down for Mr Lee to take instructions. 18.After taking instructions from the defendant, Mr Lee submitted that the defendant now does not want to pursue that a significant amount of the “Ice” is for his own consumption. He is not seeking to avail himself of this as a mitigating factor. I then adjourned the sentence for 15 minutes. During the interim, Mr Lee wanted to make further submissions. He referred this court to paragraph 19 of Chow Chun Sang and said that the present defendant is now saying that not a significant amount of “Ice” is for self-consumption, but only some or part of it. Therefore, he is entitled to a discount of sentence between 10 per cent and 25 per cent of the basic starting point as enunciated in paragraph 19 of the case Chow Chun Sang. 19.Mr Lee accepts that what the defendant says, ie some or part of the “Ice” is for self-consumption, remains a bare assertion, as the defendant simply said so to the police in the video interview. 20.My understanding of that case is that the judge in Chow Chun Sang accepted that the appellant’s contention that over half of the 7.22 grammes of “Ice” he trafficked in was for his own consumption. I drew the attention of Mr Lee to HKSAR v Tam Yuen Ling, in particular paragraph 27 and 28. I am still not prepared to accept that he took part of the drug for self‑consumption. I invited Mr Lee to adduce further evidence or to conduct a Newton hearing. 21.Having sought further instructions, Mr Lee said that no further evidence would be adduced. Reasons for sentence 22.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Lee. The Court of Appeal, in Attorney-General v Ching Kwok Hung [1991] 2 HKLR 125 laid down guidelines for trafficking in “Ice”. Where the quantity of narcotic is up to 12 grammes, sentence upon conviction after trial is between 3 and 7 years’ imprisonment. 23.In HKSAR v Capitania Edwin F CACC 28/2004, the Court of Appeal accepted that the reference to 12 grammes was a typographical mistake and should read 10 grammes. 24.For the amount of “Ice” involved in this case I adopt a starting point of 5 years and 6 months’ imprisonment. As described above, I reject the defendant’s contention that a significant amount of the drug “Ice” in question is for self‑consumption. 25.The only mitigating factor in this case is the defendant’s guilty plea, for which he is entitled to have a one‑third full discount of sentence from the basic starting point. 26.The defendant is sentenced to 44 months’ imprisonment.
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Cases cited in this judgment