HKSAR v. Ma So Heung

DCCC 330/2020

[2021] HKDC 427

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 330 OF 2020

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REASONS FOR SENTENCE

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1.The defendant faces a charge of "Trafficking in a dangerous drug". She pleaded guilty to "possession" but the prosecution decided to proceed with "trafficking". She was convicted of "possession" after trial.

2.I have summarized the evidence in my Reasons for Verdict.  In gist, the defendant was stopped and searched outside an amusement game centre in Mongkok.  The following items were found in the right front pocket of her denim shorts :-

A piece of white tissue (Exhibit P5) which contained:

(i)  a 5 cm x 4 cm blue edge transparent resealable plastic bag (Exhibit P4) which contained:

(a)  2 transparent resealable plastic bags (red edge; 4 cm x 3 cm) which contained a total of 1.28 grammes of a crystalline solid containing 1.26 grammes of methamphetamine hydrochloride (collectively Exhibit P1);

(b)  2 transparent resealable plastic bags (blue edge; 4 cm x 3 cm) which contained a total of 4.27 grammes of a crystalline solid containing 4.21 grammes of methamphetamine hydrochloride (collectively Exhibit P2); and

(ii)  2 empty 5 cm x 4 cm blue edge transparent resealable plastic bags (collectively Exhibit P3).

3.The waist bag carried by the defendant was also searched.  It contained banknotes of Hong Kong currency in various denominations which added up to a total sum of $10,440.

Mitigation & Sentence

4.The defendant is 47 and has 8 conviction records, which included 4 "simple possession" offences and 2 "trafficking" offences.  She is not married but has a daughter (aged 20).  They reside at a partitioned flat in Sham Shui Po.  Defence counsel Mr. Boyton confirmed his instructions that the defendant was an operator of a party room.  When her party room was closed, she worked part-time looking after an amusement game centre.  In mitigation, Mr. Boyton submitted that if the defendant is sentenced to a DATC, her time spent in jail custody would not be counted.

5.According to the DATC Report, the defendant is a drug dependant and is considered suitable for admission.  The report revealed that until being remanded in jail custody 2 weeks ago, the defendant has been working as a keeper at gaming centres (with "Fishing" machines) in Sham Shui Po earning $1,000 per day and a free supply of "ICE".  Notwithstanding her drug dependence, I do not consider a DATC Order an adequate and appropriate punishment for the defendant. Immediate imprisonment is the only option.

6.In the present case, 5.47 grammes of "ICE" (packaged in 4 resealable plastic bags) were involved.  They were found in a pocket of the defendant's denim shorts.  When determining the proper starting point, I have borne in mind the principles laid down in HKSAR v WAN Sheung Sum [2000] 1 HKLRD 405.  First, the defendant being a repeated offender of "simple possession", for the quantity and nature of the drug involved, I adopt a starting point of 15 months' imprisonment.  Second, I have explained in my Reasons for Verdict that the 2 empty resealable plastic bags (Exhibit P3) are neither here nor there[1].  Although I rejected the defendant's explanation for the source of the $10,000 odd cash found in her waist bag, there remained many other possibilities for her possession of such an amount of cash.  Hence, in the absence of any evidence suggesting "trafficking", I accept that the latent risk is relatively low.  I will add 3 months to reflect it.  The starting point thus becomes 18 months. With the timely guilty plea, the sentence is reduced to 12 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 12 months' imprisonment.