HKSAR v. Yin Wing Ip

HCCC 224/2019

[2020] HKCFI 352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 224 OF 2019

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REASONS FOR SENTENCE

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1.The defendant was acquitted of one count of trafficking in dangerous drugs by a jury after trial, but convicted of the lesser offence of possession of dangerous drugs under section 8(1)(a) of the Dangerous Drugs Ordinance, Cap 134.

Summary of facts

2.The defendant was on his way home when he was spotted by patrolling police officers to be acting suspiciously.  He ignored the officers’ request for him to stop and entered the lobby of the building where he lived.  The officers gave chase.  The defendant exited the building from the rear entrance and ran.  He slipped and fell and was eventually apprehended by the officers after some struggling. 

3.During the struggling, the defendant reached into his trouser pocket and threw out a cigarette box, which was later found to have contained two small plastic bags.  Inside one was some crystalline solids. Inside the other were nine other smaller plastic bags, each containing some crystalline solids as well. 

4.A glass tube was also found from the chest pocket of the defendant’s upper garment.  It was confirmed during trial by the expert witness that it was part of a device for smoking “Ice”.

5.Government Chemist confirmed that there was a total of 27.4 grammes of crystalline solids inside the cigarette box, with a total narcotic contents of 26.3 grammes of methamphetamine hydrochloride, being the dangerous drugs commonly known as “Ice”. 

6.The defendant was arrested for possession of dangerous drugs and apparatus fit and intending for inhaling dangerous drugs at scene.  The charge was later changed to that of trafficking in dangerous drugs.

7.The jury found the defendant not guilty of trafficking in the drugs, but guilty of the lesser offence of simple possession.

Previous convictions

8.The defendant has five previous criminal convictions, with three being related to dangerous drugs. 

9.He was convicted of possession of dangerous drugs in 2001 when he was 17 years old, and again in 2011 when he was 27 years old.  He managed to stay on the right side of the law for the next five years, until he was convicted of trafficking in dangerous drugs in 2016 and was sentenced in the Court of First Instance to imprisonment for five years and three months.

10.He finished serving that sentence and was released on 8 June 2018, which was slightly more than two months before his commission of the present offence.

Mitigation

11.The defendant was born in May 1984 and is now 35 years old.  He was educated up to Form Two level in Hong Kong.  He got married in 2014 to a mainlander who stays there while the defendant continues to reside in Hong Kong with his father and stepmother in Yuk Ping House.  He was working as a full‑time transportation worker earning about $10,000 per month with overtime pay of around $1,000 to $1,500.

12.The defendant began using “Ice” in 2008.

13.Pursuant to section 54A(1) of the Dangerous Drugs Ordinance, a Drug Addiction Treatment Centre report was ordered to be prepared on the defendant prior to sentencing[1].

14.In gist, the Medical Officer is of the opinion that the defendant is no longer drug dependent and would not benefit from compulsory drug addiction treatment.

Sentence

15.The maximum sentence on conviction upon indictment for possession of dangerous drugs is that of a fine of $1 million and imprisonment for seven years.

16.In the case of HKSAR v Mok Cho Tik, [2001] 1 HKC 261; CACC 165/2000, the applicant was convicted after trial of one charge of possession of dangerous drugs in the District Court and was sentenced to three years’ imprisonment.  The drug involved in that case was about 15.7 grammes of methamphetamine hydrochloride.  The Court of Appeal considered sentences in a series of cases and decided that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months’ imprisonment, with the quantity of the drugs being the main governing factor. 

17.The Court found that an appropriate starting point in that case was 18 months’ imprisonment, and enhanced the sentence by 12 months based on the existence of a latent risk of distribution.

18.In our present case, the defendant is being sentenced for the possession of 26.3 grammes of “Ice”.  I find that a starting point of 18 months is appropriate. 

Aggravating factors

19.I find that there are aggravating factors in this case that would require an enhancement of sentence.  The first factor is that this is the defendant’s fourth conviction that is related to dangerous drugs.  Another factor is that he had committed the present offence about two months after his last release from imprisonment for trafficking in dangerous drugs. 

20.For these two factors, I will enhance his sentence by three months. 

21.Based on the jury’s acceptance of the defendant’s evidence that all the drugs were for his self‑consumption, I find that it would not be in accordance with the jury’s verdict for me to enhance the sentence on the basis of a latent risk of re‑distribution.  If the jury had found that there was such a risk, they would have inferred an intention to supply and would unlikely to have acquitted the defendant unanimously. 

22.The defendant had indicated all along that he was willing to plead guilty to the lesser offence and thus should be entitled to the full one‑third discount.  He is, therefore, sentenced to 14 months’ imprisonment after plea.

Mr Philip Ross, counsel on fiat, for HKSAR

Ms Rachel Siu, instructed by CF Lee & Co, assigned by Director of Legal Aid, for the defendant