HKSAR v. Wu Wing Hung and Another

DCCC 692/2023

[2024] HKDC 951

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 692 OF 2023

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REASONS FOR SENTENCE

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1.All defendants were jointly charged with one count of possession of apparatuses fit and intended for the inhalation of a dangerous drug, contrary to section 36(1)  and (2)  of the Dangerous Drugs Ordinance, Cap 134 (Charge 1)  ; and one count of possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134 (Charge 2). The first defendant was further charged with failing to surrender to custody without reasonable cause, contrary to section 9L(2)  and (3)  of the Criminal Procedure Ordinance, Cap.221 (Charge 4).The first and third defendants pleaded guilty to their respective charges, admitted the facts, and were convicted accordingly.

FACTS

2.On 13 December 2022 at around 1929 hours, Police entered Room 1106 of M1 Hotel.  D1, D3 and other two males were inside the Room. Police revealed their identity and produced a search warrant.

3.Upon search the following items were found on the TV cabinet:-

(a)  One yellow plastic bottle and one plastic cover containing a total of 9.32g of a solid containing 7.04g of cocaine;

(b)  3 glass bottles, 2 of which fit and intended for the inhalation of a dangerous drug, containing a total of 146 ml of a liquid containing traces of cocaine;

(c)  4 lighters;

And one plastic bag containing 23 empty plastic bags next to a safe placed under the TV cabinet.

4.At the material times, all defendants had in their possession the two inhaling devices fit and intended for the smoking or inhalation of cocaine.  And all defendants had in their possession of the said 146 ml liquid which containing traces of cocaine. 

5.D3 stated in his VRI that he was a cocaine user and spent HK$500 – 600 on cocaine every day.

6.D1 failed to appear in the District Court for plea on 16 November 2023, warrant of arrest was issued and executed on 23 January 2024 when she was outside the District Court.  Under caution, D1 explained she was admitted to hospital at the material time for a month.  She claimed that she had sent the medical note to Court by mail, but no such medical note was received by the Court.  D1 was admitted to Kwai Chung Hospital from 8 November 2023 and was discharged on 4 December 2023.

MITIGATION

D3

7.The defendant aged 49, educated up to Primary 6.  Prior to his arrest, he was working as a subcontractor for electrical works on construction sites.  He was living with his parents and two teenage children, he was the sole source of income for his family.

8.He has 12 criminal conviction, 17 counts, 5 related to dangerous drug, one of which is trafficking.  His last conviction was related to road traffic offences of which he was sentenced to a total of 18 months’ imprisonment.  He completed his sentence on 9 March 2024 but remained in jail custody.  For the last 14 months, he has been under the watchful supervision of the Correctional Services Department.  The defendant is remorseful and askes the Court for leniency.  He hopes to return to his family as soon as possible.

SENTENCE

9.Subject to section 54A of the Ordinance, the maximum sentence for possession of apparatus is 3 years’ imprisonment provided by section 36(2)  of the Ordinance, and any person in possession of a dangerous drug, convicted upon indictment, is liable to a fine of one million and to imprisonment for 7 years.   Unless the defendant is serving a term of imprisonment of more than 9 months, or sentenced for other offences in the same proceedings for a term more than 9 months, no imprisonment shall be imposed for offence against section 8 or 36 of the Ordinance before the court consider the defendant’s DATC report.

10.The defendants jointly in possession of the apparatuses and the said 146 ml liquid which containing traces of cocaine.  Taking into account of the number of apparatuses, the quantity and the nature of the dangerous drug concerned, I considered the appropriate starting point of each count to be 6 months’ imprisonment, to run concurrently.  D3 was a drug dependent and was last sentenced to DATC in 2001.  He has been in jail custody since 10 March 2023, and remained in custody after he completed his sentence on 9 March 2024, during which he had no access to dangerous drugs, and most probably, he is not a drug dependent for the time being.  Thus, in the case of D3, a long suspended sentence would be sufficient to reflect the criminality and deter him to commit offences again.

11.D3 indicated his plea of guilty at the earliest opportunity, he is entitled to 1/3 discount and for the abovementioned reasons suspended for 2 years.

12.Whereas in the case of D1, she was a drug addict and was last discharged from Nei Kwu Correctional Institution on 29 April 2019.  She has been remanded in jail custody only since 23 January 2024, a DATC report is required to ascertain whether she is still a dependent on drugs and whether drug withdrawal treatment would be to her benefit. 

ORDER

D1

The sentence of D1 be adjourned to 21 May 2024 for a DATC report.

D3

Charge 1 sentenced to 4 months’ imprisonment,

Charge 2 sentenced to 4 months’ imprisonment,

sentence of both charges to run concurrently and suspended for 2 years, i.e. 4 months suspended for 2 years.

If during the operational period of the suspended sentence (2 years from today), should you commit an offence punishable with imprisonment, you are in breach of the order, the suspended sentence is liable to be activated and be in addition to the sentence you are to serve for your new offence.