HKSAR v. So Wai Ming

DCCC 449/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO. 449 OF 2011

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Reasons for Sentence

1.The Defendant pleaded guilty to a charge of trafficking in dangerous drugs namely:-

(1) 1.69 grammes of a crystalline solid containing 1.65 grammes of methamphetamine hydrochloride;

(2) 5.53 grammes of a mixture containing 2.24 grammes of heroin hydrochloride ( packed in 34 packets )

(3) 20 tablets and 2 tablets fragment containing 0.28 grammes of midazolam.

2.The D was stopped and searched by police; those dangerous drugs were found in his jeans pockets. Under caution, he said that he “did it because he was in need of money.”

Criminal records

3.The D had 9 convictions for 11 offences, they were all related to drugs, 2 were trafficking in 1999 and 2004, except the last one was theft in 2010, of which he was placed on a suspended sentence. He committed the present offence during the suspended period.

Mitigations

4.In mitigation, I was told that the D is now 31 years of age and he has been unemployed since 2008 because he suffered injury during a traffic accident. He promised to severe his links from drugs after his release from prison.

5.In passing sentence, I have regard to all the mitigating factors and also the leading authorities in respected of trafficking in ice , that is Ching Kwok Hung ( 1991 ) 2 HKLR 125 where the quantity of ice was up to 10 grammes, the sentence should be range from 3 to 7 years.

6.For the present case, the quantity was 1.65 grammes, the proper sentence would be 3 ½ years.

7.As to the heroin, according to Lau Tak Ming, the sentence for 2.24 grammes should be about 3 years and 3 months.

8.In HKSAR v Yip Pik Kwan CACC 593/1998, the court was also dealing with trafficking offence involving both ice and heroin in separate packages.  It had been suggested that the sentence should reflect the total quantity as if it were just one type of drug.

9.However, in HKSAR v Cheung Po Cho, Tommy, CACC 233/2005, the Court commented that the approach is too lenient because the presence of more than one type of drugs in a drug trafficking offence must itself be an aggravating factor.

10.As suggested in HKSAR v Yip Wai Yin CACC 80/2003, the appropriate sentence for the more serious drug should be adopted with an upward adjustment for the presence of the other drugs, the extent of which depends on its nature and potency.

11.In the case of Ching Kwok hung, the Court said that “ ice is a drug to be taken very seriously. In ways it ‘s more deleterious to its abusers and to society in general, than is heroin.”

12.To this extend, I consider that the quantity of ice in the present offence, being 1.65 grammes should be 3 years and 6 months, and I adjust the sentence upward for another 9 months for the other 2 drugs, being a total of 51 months, I also order a 1/3 discount for the guilty plea, that comes to 34 months, (2 years and 10 months).

13.Further, I also activate the  3 months suspend sentence , one month to be run concurrently to the present sentence, the remaining 2 months to be run consecutively .

14.The total sentence arrives at 3 years.

15.Order in term as to the disposal of exhibit.