HKSAR V Chiu Chung Ming

DCCC 255/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 255 OF 2012

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Reasons for Sentence

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Introduction

1.The defendant is convicted on his own plea of:

(i) the 1^st Charge of trafficking in dangerous drugs, namely 5.05 grammes of methamphetamine hydrochloride and 2.98 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134; and

(ii) the 2^nd Charge of possession of equipment fit and intended for the smoking of a dangerous drug, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap.134.

Facts

2.At about 4:45 pm on 6 December 2011, a team of police officers saw a male person coming out from the Mezzanine Floor, Wah Hing Building, No.271 Temple Street, Yau Ma Tei, Kowloon (the “Premises”). The officers intercepted that male person and entered into the Premises. The defendant and a female person were sitting on a bed in the Premises. Upon search, the police found the following items on a table:

(i) 2 plastic bags containing 5.1 grammes of a crystalline solid containing 5.05 grammes of methamphetamine hydrochloride (“Exhibit 1”);

(ii) 8 packets and 1 paper packet containing a total of 4.67 grammes of a mixture containing 2.98 grammes of heroin hydrochloride (“Exhibit 2”);

(iii) 1 electronic scale and 1 pile of plastic bags (“Exhibit 3”);

(iv) 1 plastic bottle inserted with a plastic straw which in turn connected to another plastic straw (“Exhibit 4”); and

(v) 4 pieces of tinfoil (“Exhibit 5”).

3.Under caution, the defendant admitted that he rented the Premises. The defendant further admitted that Exhibits 1, 2 and 3 belonged to him, that Exhibit 1 contained methamphetamine hydrochloride (“ICE”) and Exhibit 2 contained heroin, and that he would sell the drugs if he could not consume them all.

4.In a subsequent video-recorded interview, the defendant said inter alia that:

(i) He had rented the Premises for about 1 month at HK$200 per day;

(ii) He purchased the drugs from an unknown person at a park in Temple Street. He spent a total of HK$4,000 on purchasing the drugs;

(iii) He would package and resell the drugs;

(iv) He used Exhibit 3 to weigh and package the drugs for sale; and

(v) He used Exhibits 4 and 5 to smoke the drugs.

5.The total street value of Exhibits 1 and 2 would be about HK$7,666.

The defendant’s previous conviction record and antecedents

6.The defendant has nine previous convictions spanning from 1995 to 2012, including five convictions of possession of dangerous drugs and one conviction of smoking/injecting dangerous drugs. His last conviction was possession of dangerous drugs sentenced in March 2012 when a DATC Order was imposed on him.

7.The defendant was born in Hong Kong in September 1974. He is now 37. He has received education in Hong Kong up to Form 1 level. He used to be a construction worker. He is now being detained in Hei Ling Chau Addiction Treatment Centre.

Mitigation

8.Mr Li submitted that the strongest mitigating factor was the defendant’s guilty plea. A letter from the defendant’s father was also submitted to this court asking for leniency. Mr Li also submitted that part of the drugs seized was for the defendant’s own-consumption.

Sentencing authorities

9.According to R v Lau Tak Ming [1990] 2 HKLR 370, for trafficking in a quantity of up to 10 grammes of heroin, the sentence should be 2 to 5 years’ imprisonment.

10.According to Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 and HKSAR v Capitania Edwin CACC 28/2004, for trafficking in a quantity of up to 10 grammes of methamphetamine hydrochloride, the sentence should be 3 to 7 years’ imprisonment.

11.In light of the fact that two types of drugs, namely methamphetamine hydrochloride and heroin, were involved in the 1^st Charge, I have considered the Court of Appeal’s decisions on the two sentencing approaches, i.e. “combined” approach and “individual” approach: HKSAR v Yip Wai Yin CACC 80/2003, HKSAR v Cheng Yat Ming CACC 455/2006, HKSAR v Ho Chi Shing CACC 216/2008 and HKSAR v Ko Ka Hing CACC 355/2008. In this connection, the Court of Appeal said in HKSAR v Ho Chi Shing:

“14. In the ‘combined’ approach, … the most serious drug provides the starting point of sentence, which can then be adjusted upwards to take into account the quantity of the less serious drug.

15. The ‘individual’ approach … involves a separate starting point for each of the component drugs and the starting points will then be combined and adjusted to form an overall starting point.

16. Whether to adopt the ‘combined’ or the ‘individual’ approach depends on the circumstances of a particular case and it is a matter of discretion for the sentencing judge. Whatever approach is adopted, the important consideration is the totality of the overall starting point.

17. The applicant trafficked in substantial quantities of both cocaine and ketamine. The drugs were not mixed, but in separate and distinct packages. The judge was entitled to adopt the ‘individual’ approach by identifying separate starting points for trafficking in the cocaine and ketamine, and then adopting an overall starting point.”

12.As the methamphetamine hydrochloride and heroin in the present case were not mixed together but were contained in different packages, I will adopt the “individual” approach.

Sentence

13.For the 5.05 grammes of methamphetamine, I will adopt a starting point of 4½ years’ imprisonment. For the 2.98 grammes of heroin, I will adopt a starting point of 3 years’ imprisonment. Having given consideration to totality principle, I consider an overall starting point of 5½ years’ imprisonment appropriate for the 1^st Charge. As the defendant pleaded guilty to the charge, I give him 1/3 discount thus reducing his sentence on the 1^st Charge to 44 months’ imprisonment.

14.I accept that some of the drugs was for the defendant’s own consumption. I bear in mind that possession of dangerous drugs itself carries a term of imprisonment and that there was the actual risk of dissemination disclosed by the facts of this case: HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and HKSAR v Minney [2011] 3 HKLRD 556. I will give the defendant a further reduction of 4 months for the accepted assertion that some of the drugs was for the defendant’s own consumption.

15.I have full sympathy to the situation of the defendant’s father but I do not consider it a valid mitigating factor. There being no other valid mitigating features justifying further reduction in sentence, the defendant is sentenced to 40 months’ imprisonment on the 1^st Charge.

16.As for the 2^nd Charge, I adopt a starting point of 6 months’ imprisonment. One-third discount is given to the defendant for his guilty plea thus reducing the sentence to 4 months’ imprisonment.

17.Having considered the totality principle, I order sentences for the 1^st Charge and the 2^nd Charge to run concurrently, thus making a total sentence of 40 months’ imprisonment.