HKSAR v. Yiu Hung Kuk

DCCC 943/2017

[2018] HKDC 652

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 943 OF 2017

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Reasons for Sentence

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1.The defendant has been convicted after trial of the offence of trafficking in a dangerous drug, a total of 7 grammes of methamphetamine hydrochloride, colloquially known as “Ice”.

2.The evidence of the defendant was that all of the drug was for her self-consumption.  I rejected that evidence, but there was clear, undisputed evidence that the defendant is a consumer of the drug.  That can be found in her antecedents and also her criminal record and drug tests administered upon her.

3.She is aged 45, and she has two children still fairly young and in the care, as I understand it, of her husband.  Obviously, that is not the most satisfactory solution.  Children of that age still require a mother’s care and attention.

4.The defendant’s criminal record contains some 26 previous appearances in court, four convictions for possession of dangerous drugs over many years.  She has been to a drug addiction treatment centre and has been sentenced to imprisonment for possession of dangerous drugs.

5.As far as sentencing is concerned, trafficking in this particular drug is covered by guideline sentencing.  Up to 10 grammes of the drug would lead to a sentence in a range of between 3 to 7 years’ imprisonment.  7 grammes constitutes about 70 per cent of the guideline.  Obviously this must be taken into account when determining the starting point for sentence.

6.There are other factors to be considered such as the defendant’s personal background and the conduct during the trial, where the facts were essentially admitted.  I take all those factors into consideration.

7.I am going to take a starting point in this case of 51 months’ imprisonment.  That is 4 years and 3 months.

8.In this case there is said to be an additional mitigating factor which could lead to a deduction from that starting point, and that is that the drug consumed by the defendant was also the drug she was trafficking in, and the sale of that drug would be used to support her own addiction, which means that there may well be self-consumption of a part of that drug seized.

9.In order for that to be a mitigating factor, it must be a significant portion.  This must, of course, involve an element of speculation because of what might happen in the future.  However, given the defendant’s acknowledged and proved status as an addict to this drug, and also the evidence of her consumption, I consider that it would be appropriate to allow for a deduction under this head on the basis that a significant portion of the drug would be used for her own consumption.

10.Once this factor is established evidentially, then a court may bring into effect an additional discount of between 10 to 25 per cent of the original starting point.

11.What I have decided is to, as it were, capitalise that discount at 10 months. 

12.This will lead to a final sentence of imprisonment for this offence of 41 months’ imprisonment.