HKSAR v. Ng Ping Hei

DCCC 616/2020

[2021] HKDC 243

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 616 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.D2 pleads guilty to one charge of possession of apparatus fit and intended for the inhalation of ice, a dangerous drug, contrary to section 36 of the Dangerous Drugs Ordinance[1] (charge 2) and one charge of possession of 0.17 gramme of a crystalline solid containing methamphetamine hydrochloride (“ice”), contrary to section 8 of the Dangerous Drugs Ordinance (charge 3).

2.Full particulars of the offence are set out in the summary of facts admitted by the defendant on 11 February 2021[2].

3.In summary at around 6:32 p.m. D1 (Fung Yuk Ching) was intercepted when leaving Room 424, Oi Hei House, Yau Oi Estate in Tuen Mun[3]. D1 having left her identity card returned to Room 424 together with the police to get her identity card.

4.When a female opened the door of Room 424, DPC 3340 showed his warrant card at which time he heard someone inside Room 424 shout “Police”.

5.DPC 3340 entered Room 424.  Inside the room was a male sleeping in the living room. A 20-month old baby girl was in a crib also in the living room.  D2 was sitting on a chair on the balcony holding a device for inhaling ice.

6.Upon seeing the police D2 immediately threw the device out of the window.  DSGT 3024 was on the ground floor when he saw an object falling from the window of Room 424.  DSGT 3024 found on the ground pieces of broken glass and a red plastic tube.

7.Two transparent plastic bags containing the ice were found on the coffee table in front of D2.  D2 was arrested for possession of a dangerous drug.  Under caution and in a subsequent cautioned interview D2 admitted, inter alia that he consumed ice using the inhaling device and that he brought the device and the ice to Room 424 for self-consumption.   

Mitigation

8.In passing sentence, I have carefully considered everything said on behalf of D2 by Mr Yeung, including that D2 is 24, single, lives with his parents and girlfriend and worked as an odd-job decoration worker[4].

Drug Addiction Treatment Centre report

9.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.

10.The report details the defendant’s background and addiction history.   The defendant claimed that under the inducement of triad peers and out of curiosity he started inhaling ice in 2011.  Thereafter the defendant inhaled ice three times per week, spending about $200 each time on ice.  The defendant said his last dose of ice was in late April 2020. 

11.The defendant has never been sentenced to a Drug Addiction Treatment Centre or joined any voluntary drug treatment or attended methadone treatment. 

12.The Assessment Officer states that the defendant appeared to be cooperative in revealing his drug addiction history.  Although expressing remorse the defendant’s reflection on his drug problem remained shallow.  The defendant expressed his unwillingness to be sentenced to a Drug Addiction Treatment Centre and instead mainly pleaded for a lenient sentence which shed doubt on his readiness and determination to quit drugs.

13.Based on medical examination, clinical observation and the facts available, including that the defendant has stayed away from dangerous drugs for more than six months since his admission to prison custody, the Medical Officer is of the opinion that the defendant is not a drug dependant.  The defendant is therefore considered not suitable for admission to a Drug Addiction Treatment Centre.

Sentence

14.In HKSAR v Mok Cho Tik 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 but this does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant[5].

15.Taking into account that when the police entered the flat D2 was smoking ice; he immediately threw the device for inhaling the ice out of the window and the police found on the coffee table in front of D2 two transparent plastic bags containing ice which D2 had brought with him to the flat to consume, I am satisfied a starting point of 3 months’ imprisonment is appropriate for charge 2, possession of the inhaling device, and 9 months’ imprisonment for charge 3, possession of the two transparent plastic bags containing ice.  

16.By reason of the small quantity of ice, I am satisfied there is no latent risk. 

17.Giving D2 full credit for his pleas of guilty reduce the sentence on charge 2 to 2 months’ imprisonment and the sentence on charge 3 to 6 months’ imprisonment.

Totality

18.I am satisfied concurrent sentences are appropriate.  D2 is convicted and sentenced to concurrent sentences of 2 months’ imprisonment and 6 months’ imprisonment.