HKSAR v. He Zhikai

DCCC 242/2022

[2022] HKDC 1456

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 242 OF 2022

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Possession of dangerous drugs". The dangerous drugs involved are methamphetamine hydrochloride (commonly known as "ICE") and heroin hydrochloride.

Summary of Facts

2.About 12:20 p.m. on 27 December 2021, PC 18089 (PW1) stopped the defendant, who was riding a bicycle, outside No.93 Shui Wo Street, Kwun Tong for enquiry.  PW1 searched the plastic bag hanging on the left handle of the defendant's bicycle and found a plastic box containing the following items :-

(i) a plastic bag which contained 1.33 grammes of a crystalline solid containing 1.31 grammes of methamphetamine hydrochloride;

(ii) a plastic bag which contained 0.63 gramme of a crystalline solid containing 0.62 gramme of methamphetamine hydrochloride;

(iii) a plastic bag which contained 0.21 gramme of a mixture containing 0.18 gramme of heroin hydrochloride; and

(iv) a packet (consisting of plastic wrappings) which contained 0.14 gramme of a mixture containing 0.12 gramme of heroin hydrochloride.

3.PW1 arrested the defendant.  Under caution, the defendant admitted, inter alia, that the things inside the plastic box were dangerous drugs for his own consumption.

4.PW1 then escorted the defendant to a police vehicle where he was further searched.  PW1 found in the right rear pocket of the defendant's jeans a plastic wrapping which contained 0.1 gramme of a mixture containing 0.08 gramme of heroin hydrochloride.  Under caution, the defendant claimed that it was for his own consumption.

5.In his record of interview, the defendant admitted that all the drugs found on him were heroin and ICE.  He had just purchased them at $1,000 earlier the same morning for self-consumption.  The defendant claimed having been a drug user for more than 20 years.  The cash found on him ($11,710) was his savings.  He carried it with him because he did not have a fixed place of abode.

Mitigation & Sentence

6.The defendant is 44 and has 1 conviction record which is unrelated to drugs.  He came to Hong Kong from the mainland in 2012.  Defence counsel Mr. Chan informed me that the defendant was divorced in 2016.  His 2 children (aged 12 and 8) reside with his ex-wife. The defendant was a construction worker earning $25,000 per month, but had been unemployed for over a year prior to his arrest.

7.According to the DATC Report, the defendant began his heroin abuse in 2005.  In 2020, he added ICE to his drug habit.  As expected, having been remanded in jail custody for almost a year, the defendant is currently not a drug dependant.

8.In this charge, a total of 1.93 grammes of ICE (packaged in 2 transparent plastic bags) and a total of 0.38 gramme of heroin hydrochloride (packaged in 1 plastic bag and 2 plastic wrappings) were involved.  They were mostly carried by the defendant with 1 plastic wrapping found in his jeans pocket.  Although the defendant has admitted his long-term drug habit, he is a fresh offender of drug-related offences. 

9.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, for the quantity and nature of the drugs involved, I adopt a starting point of 15 months' imprisonment.  Second, the drugs were packaged in 3 plastic bags and 2 plastic wrappings.  I accept that they could have been sold to the defendant in such manners and that the defendant could have purchased them for his own consumption.  In the absence of any other evidence suggesting "trafficking", I consider the latent risk to be low.  I would not increase the starting point for this factor.  Thus, the proper starting point is 15 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 10 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 10 months' imprisonment.