HKSAR v. Ma Siu Wah

DCCC72/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 72 OF 2010

----------------------

---------------------

Reasons for Sentence

---------------------

1.Defendant, you pleaded guilty to one offence of possession of dangerous drugs, contrary to section 8(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134 and to one offence of failing to surrender to custody contrary to sections 9L(2) and (3) of the Criminal Procedure Ordinance, Cap.221. You admitted the brief facts and I convicted you.

2.The facts were as follows.  At about 6.12 pm on 15 August 2009 PC59052, PW1, intercepted you outside Ground Floor, Shing Lok House, Kwai Shing Estate, Kwai Chung.  PW1 searched you and found a packet of suspected dangerous drugs, P1, in the right pocket of your shorts.  Under arrest and caution you said, “I bought the packet of white powder for my own consumption.  I obtained a large quantity so that I will not need to obtain it frequently.  It is less likely that I will be caught by the police.”  You also told police the following, that you bumped into an unknown male in Sham Shui Po on 15 August 2009 and told him that you wanted to buy heroin.  As a result you went to Kwai Shing Estate and obtained the dangerous drugs from another unknown male for $4,000. 

3.You were taken to Kwai Chung Police Station.  A further search revealed another packet of dangerous drugs at your waist covered by your shorts, P2.  You claim to have bought two packets of dangerous drugs at Kwai Shing Estate, paying $4,000 for each for your own consumption.  A later analysis revealed that P1 contained 6.99 grammes of mixture containing 4.47 grammes of heroin hydrochloride; P2, 8.59 grammes of a mixture containing 5.65 grammes of heroin hydrochloride.  The total of heroin hydrochloride is 10.12 grammes. 

4.Eventually you were charged with trafficking in dangerous drugs and bailed to surrender to District Court at 9.30 on 28 January 2011.  You failed to do so and a warrant was issued for your arrest. 

5.You were later arrested on 15 February of 2011 under the warrant and after caution you claimed to have felt faint and were sent to hospital at around 9.30 am on that day.  You tried in vain to contact the police and the court.  Hospital records support the fact that you attended the hospital at 9 am that day and was discharged at 2.46 pm.  However, you failed to surrender to court as soon as reasonably practicable thereafter. 

6.You admitted to 20 previous convictions on 15 occasions.  Three involved dangerous drugs.  Due to the nature of the charge I adjourned sentence for a DATC Report which is now before me.  DATC is not recommended for reasons given in that report.  However, I have taken the contents of that report fully into consideration when arriving at my sentence. 

7.On your behalf, Miss Wong entered limited mitigation.  She adopted the contents of the DATC Report, especially the information regarding the rather complicated domestic situation.  She emphasised that you are no longer considered to be addicted.  She told me that you are a good son, a good husband and a good father, that despite your addiction you got on well with your family. 

8.I note that your elderly mother has come to support you.  Indeed, she told me of the support of the whole family.  She emphasised that on arrest you were entirely co-operative and you have pleaded guilty at the first available opportunity.  In the report you express remorse for your offence.  There was little said about your failure to answer bail. Miss Wong told me that you had been informed that a prison sentence was inevitable in these circumstances. 

9.I turn now to the sentence itself.  I can find no evidence of latent risk and I accept that the whole of the cache of drugs was for your own consumption.  I note that at the moment you are considered to be non-drug dependent but history is against you.  It is to be hoped that on release you are able to remain so.  I note your co-operation.  I note the support of the family and that you pleaded guilty at the first available opportunity. 

10.The 1st charge involves possession of 10 grammes of heroin hydrochloride.  I take a starting point in that case of 18 months’ imprisonment reduced to 12 for your plea of guilty.  You will go to prison for 12 months. 

11.Charge 2 is your failure to answer to your bail.  I do take into account that you were taken to hospital on that day but you failed to surrender as soon as possible to custody.  On that charge I take as a starting point 1½ months’ imprisonment reduced to one month; that is, one month imprisonment consecutive to the other sentence.  That is a total of 13 months.