HKSAR v. Yung Wai Leong

DCCC 978/2017

[2018] HKDC 603

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 978 OF 2017

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of possession of 8.82 grammes of a crystalline solid containing 8.82 grammes methamphetamine hydrochloride (“ice”), contrary to section 8 of the Dangerous Drugs Ordinance[1] and one charge of failure to produce proof of identity on demand, contrary to section 17C(3) of the Immigration Ordinance[2].

2.In summary at around 0625 hours on 8 August last year the police intercepted the defendant at ground floor of No. 287 Lai Chi Kok Road in Sham Shui Po.    

3.The police found in the defendant’s right hand a resealable plastic bag containing the ice.  Under caution the defendant admitted that he bought the ice for his own consumption.  

4.A body search revealed the defendant had no identity document.  Under caution the defendant told the police he had lost his identity card a long time ago. 

Mitigation

5.In passing sentence, I have carefully considered everything said on behalf of the defendant by Miss Hung.

DATC report

6.By virtue of section 54A of the Dangerous Drugs Ordinance no sentence of imprisonment may be imposed for the offence of possession of a dangerous drug without first considering the suitability for cure and rehabilitation.

7.The report reveals that the defendant is single, living with his parents and that prior to his arrest he was a casual worker earning $500 per day.  The defendant was first tempted to take drugs in 2002 and last took ice the day before he was arrested.  The defendant has been sentenced to the DATC in 2009, 2012, 2014 and 2016.   

8.The Medical Officer is of the opinion the defendant is no longer a drug dependant, no doubt due to the fact the defendant has been in custody since his arrest in August last year.  The defendant is therefore not considered suitable for admission to the DATC.

9.During the interview with the assessment officer the defendant says he is determined to reform himself and stay away from drugs in the future.  With the support of his parents, who are in court today, I hope the defendant can fulfil that determination. 

Possession of ice

10.In HKSAR v Mok Cho Tik[3]the Court of Appeal said the starting point for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months.  I am satisfied for 8.82 grammes of ice a starting point of 15 months’ imprisonment is appropriate.

Persistent offender

11.The defendant has appeared in court on ten occasions since 2003 amassing a total of nineteen convictions, of which five are for possession of drugs.  I am satisfied the defendant is a persistent offender by reason of which I increase the starting point by 3 months to 18 months’ imprisonment. 

Latent risk

12.Miss Hung refers the court to HKSAR v Cheng Kong Sang where the Court of Appeal enhanced the sentence to reflect the latent risk factor by 10 months for possession of 25 grammes of heroin contained in seventy one packets[4].  Miss Hung submits that the latent risk in that case was greater.

13.Taking into account that the defendant was arrested on the street with 8.82 grammes of ice and that the defendant has a conviction for trafficking in drugs in 2010, I am satisfied there was a clear latent risk that the drugs could have fallen into other hands.  In the circumstances I enhance the starting point by a further 6 months to 2 years’ imprisonment. 

14.Giving the defendant full credit for his plea of guilty the defendant is convicted and sentenced to 1 year and 4 months’ imprisonment.  

Failing to produce proof of identity

15.The maximum sentence is a fine of $5,000.  This charge is usually dealt with in the Magistracy by way of a small fine.  The defendant is convicted and fined $150 to be paid within 7 days.  In default of payment he will serve imprisonment for 1 day consecutive to the sentence on charge 1.