HKSAR v. Tse Chi Wai

DCCC 842/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 842 OF 2012

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REASONS FOR SENTENCE

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1.The defendant was convicted after trial on a charge of trafficking in 12.82 grammes of a crystalline solid containing 12.19 grammes of methamphetamine hydrochloride (“ice”) of the lesser offence of possession of the drugs, contrary to section 8 of the Dangerous Drugs Ordinance, Chapter 134 (charge 1). The defendant had pleaded guilty to possession at the outset of trial and also pleaded guilty to a charge of assaulting a police officer, contrary to section 36(b) of the Offences against the Person Ordinance, Chapter 212 (charge 2).

2.In summary at about 00.25 hours on the 11th July last year when PC 11712 intercepted the defendant, the defendant grabbed PC 11712’s private parts resulting in tenderness to the left side of his scrotum.  The defendant was arrested and upon search the police found from the left front pocket of his trousers a transparent re-sealable plastic bag containing another bag inside which was the ice.   

3.In passing sentence I have taken into account everything said on behalf of the defendant by Mr Cheung, together with the defendant’s letter stating he is now determined not to reoffend so as not to disappoint his mother anymore. 

4.I have considered the Drug Addiction Treatment Centre report which details the defendant’s drug history.  The report concludes that because the defendant has been remanded in jail custody for six months he is no longer drug dependant and therefore not considered suitable for admission to a Drug Addiction Treatment Centre.

5.In HKSAR v Mok Cho Tik [2001] 1 HKC 261 the Court of Appeal said the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months.  In Mok Cho Tik a starting point of 18 months was said to be appropriate for 15.724 grammes of ice.  Mr Cheung also referred the court to HKSAR v Chan Tai Wah          CACC 476/2011 where the Court of Appeal said for 5.47 grammes of ice the starting point should be 15 months imprisonment.  I am satisfied for 12.19 grammes of ice a starting point of 18 months is appropriate.

Latent risk

6.In HKSAR v Jarhia Kuldeep Singh CACC 96/2006 the defendant, who was aptly described as an unemployed addict, was stopped in the street and found in possession of 6.82 grammes of ice.  The Court of Appeal enhanced the starting point by 12 months to take into account the latent risk factor.  Taking into account my finding that the defendant was at the time of arrest unemployed (see paragraph 31 of the verdict) there was in my view a risk the drugs could have fallen into other hands.  As in Jarhia Kuldeep Singh I increase the starting point by 12 months to  30 months imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 1 year and 8 months imprisonment. 

Assault police

7.This was an unpleasant assault on the private parts of the police officer.  Taking into account this is the second time the defendant has assaulted a police officer I am satisfied the proper starting point after trial is one of 3 months imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 months imprisonment. 

8.The assault charge is separate and distinct from the drugs charge.  Consecutive sentences are appropriate making a total sentence of  22 months imprisonment, which I am satisfied properly reflects the defendant’s criminal culpability on the two charges.