HKSAR v. Ho Pan

DCCC 301/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 301 OF 2013

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Reasons for Sentence

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1.The defendant has pleaded guilty to three charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. All three charges relate to the same date, 22 January 2013 and the same dangerous drug, Ice.

2.On that evening, the police stopped and searched the defendant at Choi Yuen Plaza, Choi Yuen Estate, Sheung Shui.  In a cigarette box in the possession of the defendant, the police found three packets of dangerous drugs.  The three packets contained a total of 0.90 grammes of a solid containing 0.88 grammes of Ice.  Under caution, the defendant admitted the solid was Ice and that some of it was for self-consumption and some for sale.  He said he would sell some for a small profit.  He also admitted to the police that he had prior to his arrest already sold one similar packet for $250. 

3.The defendant was taken home for a house search and in his home the police found paraphernalia often associated with trafficking dangerous drugs.  These include a moisture absorbent pack, an electronic scale, a pair of forceps, a plastic straw and some resealable plastic bags.  These items can be used to pack dangerous drugs into packages for sale. 

4.Defendant made a further full admission to the police after the home search.  He said he was given the quantity of Ice to pack and sell on behalf of another and for that he would receive a reward of $1,000.  He also told the police that he himself was a drug addict and consumed Ice.

5.The defendant is not a man of clear record.  He has five previous convictions, however, none relate to dangerous drugs and the last conviction was dated 1997, a long time ago.  I do take into account the total dangerous drugs of charges 2 and 3 equals 7.65 grammes of Ice. Charge 1 was not quantified but could not have been more than 0.30 grammes. 

6.Defendant is 33 years old, divorced and now living with his mother.  Before his arrest, he had been unemployed for a few months.  He does have his sister here in court to lend him support. Defendant’s best mitigation is his plea of guilty.

7.There are guidelines where trafficking Ice is concerned and I have considered the authority of AG v Ching Kwok Hung [1991] 2 HKLR 125.  That sets out the guidelines the court should consider.  I also consider there was a typographical error in that authority that was corrected by the authority of HKSAR v Capitania [2004] HKCU 926.  What is relevant here is that where up to 10 grammes of Ice is trafficked, a 3 to 7 year term of imprisonment would be appropriate.  I will take a total figure of 7.65 grammes of Ice as charge 1 is not quantified.  Even if it were, as I have said earlier, it would not be more than 0.30 grammes.  It would not make a great difference to the starting point.  I also take into account that there are three offences but all were committed on the same day arising out of the same facts.

8.Considering the authority I referred to, mathematically speaking 7.50 grammes of Ice would attract a starting point of 6 years’ imprisonment.  If the defendant was only faced with charges 1 and 2, he would be looking at a 3 year starting point.  I take into account the defendant’s full cooperation with the police.  But for his own confession, the police would not have known of charge 1.  I also take into account that he has previous convictions but none are related to dangerous drugs and the last conviction is old.  And I take into account the defendant’s plea and mitigation.

9.Defendant, please stand up.  I will take, after considering those relevant factors, a global starting point of 5 years and 3 months for the quantity of dangerous drugs in all charges.  Defendant is entitled to a discount of one-third for his plea.  After that discount is given, the global sentence would be 3 years and 6 months.  I intend to sentence the defendant accordingly. 

10.For charge 1, the defendant will be sentenced to 2 years’ imprisonment.  Charge 2, 2 years’ imprisonment, charge 3, 3 years and 6 months.  All sentences will be ordered to be served concurrently.  The defendant will serve a total of 3 years and 6 months’ term of imprisonment.