HKSAR v. Yuen Man Ho

DCCC 503/2018

[2019] HKDC 480

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 503 OF 2018

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REASONS FOR SENTENCE

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1.The defendant stood trial for a charge of trafficking in a dangerous drug but he was convicted of a lesser charge of possession of dangerous drug, for the 2^nd charge, possession of apparatuses fit and intended for the inhalation of a dangerous drug, the defendant was convicted on his own plea of guilty and facts admitted as contained in the admitted facts.

The prosecution case

2.In the afternoon of 21 December 2017, police mounted an anti-narcotic operation at the Grande Rhine Hotel, when police arrived at the door of Room 16, a woman came out of the room and was intercepted, police then entered the room and saw the defendant was sitting in front of a dressing table.

3.On the dressing table, the police found:-

(a) a resealable plastic bag containing 5.37 g of a solid containing 5.19 g of cocaine;

(b) a resealable plastic bag containing 11.1 g of solid containing 10.7 g of cocaine;

(c) a glass bottle with an orange straw with traces of cocaine found;

(d) a glass bottle with a red straw with traces of cocaine found;

(e) a white round plate;

(f) and a lighter.

4.The defendant was arrested and cautioned, he replied under caution “Ah Sir, those 2 bags of cocaine and the two glass pots are mine, I use them for consuming dangerous drug.” 

5.The retail price of the drugs was HK$19,187.55.

6.Urine sample collected from the defendant on 24 December 2017 showed positive result of cocaine.

Mitigation and sentence

7.The defendant is 45 years old and single.  He was educated up to secondary 1 in Hong Kong.  Before his arrest, he worked as a transportation worker.

8.I am told the defendant had those drugs for self-use, and when the time the police arrived, he was taking those drugs in question.  I have called for a DATC report in respect of these two offenses, the conclusion reached by the medical officer is that he is no longer a drug dependent, it is of no surprise to me since he has been in custody for months. 

9.It however means the only option that is left is one of immediate custodial sentence.  The usual sentence for possession of dangerous drugs for self-use is in the region of 12 to 18 months, defence counsel has no quarrel with that.  Given the amount involved was 15.89 grams in total, and that he had 4 convictions of trafficking in a dangerous drug, 1 conviction of possession and 1 conviction of apparatuses, it certainly is an aggravating factor that I shall take into account, I will adopt a starting of 18 months’ imprisonment.

10.The next step is to consider the latent risk factor.  The evidence revealed, the defendant while taking drug in a hotel room, he also invited this lady Hsu to his room to collect her debt.  And that he also mentioned a friend of his would be here to help settling his debt.  That showed the defendant did not care his drug taking habit would be discovered, the fact that people could freely go up to this hotel room while he was taking drug, it is not hard to imagine the defendant might share the drug with his friends or sell them if asked.

11.Besides, he had 4 previous convictions of trafficking in a dangerous drug, I am of the view that the risk is real and would be in medium to high spectrum. I would increase the sentence by 9 months, therefore the starting point for charge 1 is one of 27 months.  For charge 2, I will adopt a starting point of 6 months given the numbers of apparatuses involved. 

12.I have confirmed with both the prosecuting and defense counsel, the defendant had indicated he would plead guilty to possession of dangerous drugs on the plea day but was rejected by the prosecution, therefore the defendant still is entitled to one third discount on charge 1, as to charge 2, plea of guilty was indicated on the plea day, one third discount applies.

13.For charge 1, he is sentenced to 18 months’ imprisonment, for charge 2, he is sentenced to 4 months’ imprisonment.  Given the fact that he was taking the drugs in question while using those apparatuses on the day of his arrest, I order the sentence on both charges to run concurrently, making a total of 18 months’ imprisonment.