HKSAR v. Man Tsz Shun

DCCC402/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 402 OF 2012

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Reasons for Sentence

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1.In this case the defendant is charged with, pleaded guilty to one count of ‘trafficking in a dangerous drug’, contrary to section 4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap. 134, Laws of Hong Kong. He is convicted upon his plea and admission of facts.

2.The facts reveal that at about 8 pm, on 7 March 2012, the police saw the defendant walking in the lift lobby of a housing estate in Yuen Long.  They found him acting suspiciously and intercepted him to demand a search.  On him the police found 21 plastic bags containing a crystalline solid.  Subsequently it was confirmed that they contained in total 6.13 grammes of methamphetamine hydrochloride, commonly known as “ice”.  In addition the police found another plastic bag containing 1.96 grammes of cannabis in herbal form.

3.Upon caution the defendant admitted that he purchased the “ice” and cannabis at about 7 pm before the arrest.  The prosecution contended that by reason of the quantity and the number of packages involved, the defendant was trafficking the said dangerous drugs. The defendant’s plea to the charge confirmed it to be the case.

4.There are very clear sentencing guidelines set out by the Court of Appeal in trafficking offences.  In terms of severity and quantity, the charge relating to “ice” was the more serious one as compared to the part relating to cannabis.  In the case of Shing Kwok Hung [1991] 2HKLR 125, as amended by the case of Capitania CACC28/2004, the present quantity falls within the bracket of up to 12 grammes, normally warranting 3 to 7 years’ imprisonment.

5.The court was informed that the defendant had a history of mental illness. Therefore before passing sentence I  called for a probation officer’s report and two psychiatric reports.  The probation officer sets out a rather detailed history of the defendant and states that the defendant has been a schizophrenia patient with borderline intelligence deficiency. He came from a working class family, the fifth among six sisters.  He stutters, and since 2004 showed symptoms of schizophrenia.  He had been on outpatient treatment but had been frequently in default.

6.More importantly, one of the psychiatrists pointed out that, , he has a history of poly-substance abuse since the age of 20, including “ice” and cannabis.  It is not very clear whether his mental illness has a causal connection to his poly-substance abuse.  However, his present mental state is stable with no mood of psychotic symptoms.  He is mentally fit to plead.  The psychiatrists do not recommend institutionalised treatment but advise that he should continue to receive outpatient follow-up. 

7.Thus, at the time of the offence, the defendant’s history of mental illness had no direct relation to his commission of the crime.  Whatever the cause of his mental illness is, this does not constitute valid mitigating factor in the present case.  So in all I do not see anything from his background and from counsel’s submission that can persuade me not to comply with the sentencing guidelines.

8.Since the present case involves a total of 6.13 grammes of methamphetamine hydrochloride, I will adopt 36 months as a starting point.  It is reduced down to 24 months by reason of his guilty plea.  For the avoidance of doubt, the apparently lower starting point has already taken into consideration of his mental illness, his unfortunate background and the small quantity of cannabis found on him at the time.

9.The defendant is hereby sentenced to 24 months’ imprisonment.