HKSAR v. Cheung Joey Sannad

HCCC 232/2017

[2018] HKCFI 733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 232 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 14 November 2017, the defendant, aged 30, pleaded guilty to the charge of possessing a solid containing 18.25 grammes of methamphetamine hydrochloride, more commonly known as “Ice”, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134. In addition, he pleaded guilty to a 2nd count of resisting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences against the Person Ordinance, Cap 212.

Mr McNamara, in his very helpful mitigation address, has indicated that the defendant originally offered a plea of guilty to the charge of possession on 15 February this year, which was prior to the committal.

The defendant had been seen during the early evening of 19 August 2016 in Hennessy Road, acting in a rather furtive manner. It was as a result of this that he was stopped by the police. He took a small item from his shoulder bag and threw it into the road and then put up a struggle which caused some minor injuries to the police officer who eventually arrested him.

When the item the defendant had thrown was retrieved it was found to contain the drugs identified in the 1st count. The defendant said nothing at the scene or later in interview about the drugs. It is apparent from the antecedent history, and from four of the five previous convictions that the defendant has acquired, that drugs have been the cause of his misfortune in adult life. On three separate occasions during 2005 and 2006 the defendant was ordered to attend a Drug Addiction Treatment Centre and that was for a total of six offences. This was followed in 2008 by a sentence of 5 years and 4 months for robbery. And following his release from that sentence he received a sentence of 4 years and 10 months for trafficking in dangerous drugs. The last conviction clearly has a relevance to the present case.

I have considered the decisions of the Court of Appeal in HKSAR v Mok Cho Tik [2001] 1 HKC 261 and the more recently decided case of HKSAR v Chan Tai Wah [2012] 4 HKLRD 674 where the reasoning of the former appeal was adopted. Both judgments emphasise the significance of an offender who, in circumstances such as this, have no prior trafficking conviction. And the reason for this is obvious. A convicted trafficker who is charged with simple possession of dangerous drugs is plainly far more likely to use part of his supply of drugs either socially or commercially than the offender who has never trafficked in drugs. It is this aspect which has come to be known as the latent risk factor, and in this case it is of considerable significance.

I take into account of course what Mr McNamara has said in his mitigation speech that the defendant had quite a large sum of money awarded to him arising from a violent incident in which he was injured. But he used that money to buy drugs and it would not be at all surprising that he used or would use some of those drugs to sell to others.

I am not going to rehearse the decisions which are clearly set out in those two cases to which I have referred. The defendant is a longstanding addict of “Ice”. Mr McNamara had indicated that the defendant’s blood sample provided at Lai Chi Kok following his arrest revealed the presence of methamphetamine. I have now been supplied with a full and very helpful DATC report which is prepared by Chan Yiu-wai, an assessment officer at Lai Chi Kok Reception Centre. It is clear from this that the defendant is no longer drug dependent and for that reason is not a suitable candidate for re-admission to a Drug Addiction Treatment Centre.

I am satisfied that the starting point on Count 1, the amount of “Ice” in question, should be one of 18 months’ imprisonment. And because of his recent history of trafficking, there should be an enhancement of that sentence by 12 months to take into account the inherent risk that some of that quantity in the defendant’s possession might find its way to others.

Mr Cheung, would you stand, please. If you had been convicted of possession of the “Ice” in your possession your sentence would have been after a trial by jury 30 months’ imprisonment. As it is, you have pleaded guilty and fortunately for you the plea of guilty has come before the decision in Ngo Van Nam [2016] 5 HKLRD 1, which was given on 2 September 2016, a very short while after your arrest. I am going to give you full credit for your plea. Your sentence on Count 1 is 20 months’ imprisonment. On Count 2, bearing in mind the minor nature of the injuries suffered by the officer who you resisted, what I propose to do is to say that the sentence should be one of 2 months’ imprisonment of which only one month will be consecutive to the sentence of 20 months. So your sentence in total is one of 21 months.