HKSAR v. Yiu Chan Hung

DCCC305/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 305 OF 2009

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Reasons for Sentence

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1.The defendant pleaded guilty to two charges:-

a.  1st charge:- possession of dangerous drugs contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance Cap.134;

“  namely, 5.72 grammes of a crystalline solid containing 2.96 grammes of “Ice”.”

b.   Charge 2:- trafficking in dangerous drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap.134;

“  namely 5.03 grammes of a crystalline solid containing 4.21 grammes of “Ice” and 0.58 grammes of cannabis in herbal form.”

The facts of the case

2.At about 3.15 pm on 7 November 2008, PW1 saw the defendant come out from his premises and looked around furtively at the corridor. PW1 stopped him for an inquiry. The defendant claimed he was waiting for his friends. The defendant was then brought back to his flat for further search. Inside the defendant’s trousers pocket PW1 found the drugs in Charge 1. PW1 arrested him for possession of a dangerous drug and he claimed the “Ice” was for his own consumption.

3.Inside the cabinet of his bedroom, PW2 found a box containing the following items:

(1)  an electronic scale on which his fingerprint was found on it;

(2)  a resealable transparent plastic bag containing suspected “Ice” that in Charge 2 and

(3)  a resealable transparent plastic bag containing the cannabis;

(4)  a plastic bag containing 15 empty plastic bags.

4.Under caution the defendant claimed the drugs were for his own consumption.

The criminal record

5.The defendant had two previous convictions in 1991. One is publishing an obscene article and the other was possession of an obscene article for the purpose of publication. He was fined for both sentences.

Mitigation

6.The defendant is now 55 years of age. At the time of his arrest he jointly operated a butcher shop with his brother in Mongkok and he earned about $19,000 per month. He started to take “Ice” one year ago as his wife left him and returned to Thailand with his daughter. Suffering from this emotional disturbance, the defendant started to take “Ice” to relieve his agony. This is what the defendant said in his own letter too. He is now remorseful.

7.I was further told that half of the quantity of the drugs in Charge 2 was, in fact, for sharing with his friend. Because of this factor the defence urged me that a lower starting point of 3 years should be adopted to reflect this fact. I was also referred to the case of HKSAR v Wong Suet HauCriminal Appeal No.366 and 487 of 2000.

Sentence

8.The defendant admits that he was a drug addict of “Ice” for a year. The quantity he consumed was about 1 to 2 grammes per day.

9.In respect of the 1st charge he was found with the “Ice” on his person outside his premises. He told the police that he was waiting for his friend at the material time. The street value of the drug concerned was about $3,500. Assuming 1 gramme a day, the drugs in Charge 1 can last the defendant for about 5½ days.

10.By way of estimation, the defendant needs $21,000 per month to finance his drug habit. His earning of about $19,000 was not sufficient to cover his drug habit at all. There is a deficit of about $2,000, not to mention his daily expenses, rents and other expenses. Therefore, there is still a great latent risk that the drugs in Charge 1 would go into the wrong hands and be redistributed in the society.

11.As to Charge 2, the defence said that the weighing machine was to weigh the quantity of the drugs that the defendant needed to consume every time, but there were also 15 resealable plastic bags for packing the drugs.

12.The defendant said that he would share half of the drugs with his friends and the street value was $3,500, which means $1,750, would be shared with his friends. It also means to reduce his own stock and also increase his own financial burden to purchase more drugs at the end.

13.Although the defendant did not have any previous record of drug offences, and that alone does not persuade me to accept that half of the drugs were intended to be shared with his friends, I therefore reject this mitigating factor.

14.With this information in mind, I take a starting point of 9 months in Charge 1 and enhancing the sentence by 100% because of the latent risk factor it comes to 18 months.I reduce 1/3 of the sentence, it comes to 12 months.

15.As to Charge 2, the quantity of “Ice” was 4.21 grammes while the cannabis was 0.58 grammes which is a relatively small quantity. According to the guideline case of Ching Kwok Hung CACC15/1990, the quantity of the “Ice” involved falls into the sentencing bracket of 3 to 7 years.

16.I take a starting point of 4 years and 8 months and reduce the sentence to 37 months; 6 months in Charge 1 be concurrent to Charge 2. The total sentence is 43 months.

Application for leave to appeal against the defendant's sentences allowed by the Court of Appeal. Please refer to CACC462/2009 dated 30 September 2010