HKSAR v. Yeung Kam Kei

DCCC 802/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.802 OF 2013

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of trafficking in dangerous drugs. Particulars are that he on 8^th June 2013, outside Salem Game Centre, shop C2, ground floor, Sha Tin Fun City, Shatin, unlawfully trafficked in a 12.51g solid containing 12.26g of methamphetamine hydrochloride (commonly known as ICE).

2.Upon the defendant’s conviction, the prosecution indicated that they would accept that half of the 12.26g of ICE narcotic contents was for the defendant’s self-consumption.

Summary of Facts

3.The defendant was stopped by Police officers while acting furtively outside the game centre. Upon search one bag of dangerous drugs was found concealed underneath the seat of the bicycle that the defendant was riding. Another plastic bag was found in the defendant’s left front pants pocket. The defendant was then brought back to Shatin Police station for further enquiries.

4.Inside the searching room at the Police station, The defendant took out another transparent re-sealable plastic bag which contained 7 packets of dangerous drugs from his pants.

5.Under caution, the defendant said that the dangerous drugs found on him were for his self-consumption. Despite this, the defendant admitted to the last paragraph of the summary of facts which states that at all material times the defendant possessed the dangerous drugs found on him for the purpose of unlawful trafficking.

Previous convictions

6.The defendant was convicted for 1 charge of possession of equipment fit and intended for smoking a dangerous drug, and 1 charge of possession of dangerous drugs on the same day in April 2008 and was sentenced to probation.

Mitigation

7.Mr. Jim for the defendant informed the court that the prosecution had indicated by way of a letter that they would accept that half of the ICE found on the defendant was for his self-consumption. Mr. Jim however acknowledged that the usual sentence for simple possession of dangerous drugs is that of between 12-18 months’ imprisonment. The final sentence would therefore comprise of 2 parts, incorporating both sentences.

8.The background of the defendant is succinctly set out in the antecedent statement in the defendant’s own words. In gist, the defendant is 38, educated up to F.3 level and single. After his conviction for possession of ICE in 2008, the defendant did try to quit and rehabilitate himself and was doing quite well working as a skilled carpenter since 2009. Unfortunately, because he had to work very long hours he succumbed to temptation and resorted to ICE to try to give himself an edge in his work.

9.In 1993, when the defendant was 18 years old, he witnessed a robbery and helped in the apprehension of the robber. This led to a Certificate of Commendation from the Police. This, of course, was 13 years before his first conviction for possession of instrument fit for unlawful purpose when he was fined $750 in 2006. What Mr. Jim wanted to say was that the defendant is not someone of a bad nature.

Sentencing Tariff

10.The sentencing guidelines for trafficking in ICE are found in AG v Ching Kwok-hung [1991] 2 HKLR 125 (as amended in HKSAR v Capitania, CACC 28/2004). For trafficking of ICE of up to 10g, the tariff sentence is 3 to 7 years’ imprisonment, between 10 to 70 grammes, between 7 to 10 years’ imprisonment.

Sentence

11.Having heard the defendant’s mitigation, given the serious nature of the charge and the amount of ICE involved, I find that the fact that the defendant was a recipient of a Police commendation some 20 years ago is not a factor that would allow me to depart from the sentencing guidelines. On the other hand, I do find the fact that the defendant has been in gainful employment for the past 6 years a mitigating factor and would merit a slight reduction in his sentence.

12.My sentence is calculated on the basis that half of the ICE were for the defendant’s self-consumption.

13.For trafficking in 6.13g (being half of 12.26g) of ICE, I find that a proper application of the guideline sentence would bring about the starting point of 63 months’ imprisonment.

14.For the simple possession of 6.13g of ICE, given the relatively large quantity, and given that this is the defendant’s second conviction for possession of ICE, I find that a proper starting point would be 15 months’ imprisonment.

15.Bringing the 2 starting points together would lead to a starting point of 78 months’ imprisonment. I will further deduct 3 months from this starting point in recognition of the defendant’s good employment record for the past 6 years. The final starting point is therefore that of 75 months’ imprisonment.

16.I grant the defendant the full one third discount for his guilty plea and sentence him to 50 months’ imprisonment.