HKSAR v. Ho Tak Shing

HCCC 170/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 170 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant had pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

He was intercepted by the police and upon search, two plastic bags of ‘Ice’ were found in his shoulder bag. Upon caution, he claimed that the ‘Ice’ was for his own consumption.

Upon analysis, it was found that the drugs were 54.8 grammes of a crystalline solid containing 53.8 grammes of methamphetamine hydrochloride. The retail value of the drugs was around $20,000.

The defendant is now aged 34. He has nine previous convictions, three of which concern drugs. One was trafficking back in 2011. He was last discharged from DATC on 22 April last year. I was told that he was recalled to DATC after the arrest of this case, namely between September to December last year.

By way of mitigation, I was urged to take into account, firstly, the drug test result of the defendant shows ‘Ice’ positive which shows that he himself was an addict at the time of the present offence.

Counsel relied on three authorities, two of which are Cheuk Kin Man and Lee Wai Keung. She submits that if there is a possibility that part of the drugs was for his own consumption, he is entitled to a reduction from the original starting point before the one-third discount. Counsel also begs for leniency on his behalf, saying that the defendant has expressed his unreserved remorsefulness.

In sentencing the defendant, I have taken into account his plea, the nature of the drugs, the relevant sentencing tariff and mitigation forwarded by counsel on his behalf.

The narcotic in the present case is 53.8 grammes of ‘Ice’ which falls within the 10 to 70 grammes, that is the 7 to 11 years’ sentencing tariff as stipulated in the case of Tam Yi Chun. I consider an appropriate starting point should be 111 months.

Counsel has urged me not to treat this defendant as a persistent offender or that he had offended whilst on bail, in order to enhance sentence. On the other hand, counsel reiterated as the defendant has previous dangerous drugs related offence and, secondly, that there is ‘Ice’ in his urine during test after his arrest and, thirdly, his own on-the-spot explanation, counsel asked me to consider there is a real possibility that the defendant consumes a small part of the drugs seized and to give him some discount.

The actual authority on this topic must be Wong Suet Hau. It is worth noting in that case, Stuart-Moore VP had specifically said that only where it was accepted that a significant portion of the drugs were for the defendant’s own consumption that the court should adjust the sentence to reflect the fact that not all the drugs were for trafficking.

The sentencing courts are required to look with great care at the surrounding circumstances in order to decide whether or not to accept the contention. That sentencing principle has been reiterated in the case of Tam Ling Yuen. It is not unusual for drug addicts to feed their own addiction by resorting to trafficking.

In the present case, I come down with the conclusion that I am not satisfied that any significant or readily quantifiable division was for the defendant’s own consumption to warrant a reduction from the starting point. I see nothing in this case which would warrant any further discount from the one-third for his plea, and his remorse is subsumed into this one-third discount.

He goes to prison for 6 years and 2 months.