COURT: Mr Cheuk, could you please stand up? I’m now going to pass sentence on you and these are my reasons for the sentence.
On 27 June 2014, the defendant pleaded guilty to two counts of possession of a dangerous drug relating to two quantities of “ice” of 1.31 grammes and 24.29 grammes respectively.
The brief facts of the case are as follows. On 15 October 2013, at around 9.43 pm, police officers conducted a licence check at Club de Lotto Snooker in Mong Kok, Kowloon. The police observed the defendant who was behaving suspiciously. He was searched but nothing was found on him. He had with him a black waist bag which was searched and inside was found a metal box containing two resealable plastic bags within which was the quantity of “ice” stated in count 1.
He was arrested and cautioned and in response he said, “These are ice, they are what are left after consumption by me.” Later that day he was taken by the police to his home for a search of the premises. The police found on a bedside cabinet a black velvet bag containing 17 transparent resealable plastic bags within which was the quantity of “ice” stated in count 2. He was again arrested and cautioned in relation to these drugs and in response he said, “Ah sir, this ice is also what is left after consumption by me.”
Two video-recorded interviews were conducted with the defendant. In his first interview, he said that he had purchased the two bags of drugs seized from his waist bag from a male called “Ah Wai”. One of the bags contained drugs left over from what he had consumed. The other bag had been purchased by the defendant that morning for $600. He said he consumed part of it in a toilet at Langham Place in Mong Kok. He then left for the snooker club. He claimed that he had been consuming “ice” for over a year.
In this second interview, he said that the bags of “ice” found in his residence were for his own consumption. He said that they had been supplied to him by Ah Wai the previous week. He paid $3,500 for one ounce of the drugs. He claimed this was the first time he bought “ice” in bulk. He said he spent a few hundred dollars per week consuming “ice.” He said he worked as a driver and earned approximately $15,000 per month.
The drugs seized had a total estimated retail value of $17,900.
At the hearing on 27 June 2014, the case was adjourned to obtain a report as to his suitability to attend a drug addiction treatment centre. However, as noted in the report, he had previously received a detention order in 1999 and 2007. As is evident from his criminal record, since 1997 he has come before the courts on 11 occasions where he has been convicted of possession of drugs and related offences.
At the time of this offence, he was serving a 2 year suspended sentence of 3 months’ imprisonment for two drug offences which were imposed on 17 September 2012. In the suitability report, the medical officer determined that he is no longer a drug dependent and therefore he was not considered suitable for admission to a drug addiction treatment centre. It was noted, however, that he continued to abuse drugs and engage in related criminal activity.
In mitigation, Mr Dick Lee for the defendant submitted that the defendant has by his plea of guilty displayed remorse and this is a factor in his favour. As provided for by the relevant authorities, he is entitled to a third discount from his sentence.
There was an issue as to the latent risk factor. Mr Lee submitted that it was minimal, as it only concerned the drugs found on him at the snooker club. He noted that the defendant lived alone at home and there was no latent risk factor with the drugs found there.
I will approach the sentencing of the defendant by treating the drugs as one total quantity. On the authority of HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405 and HKSAR v Mok Cho Tik [2001] 1 HKC 261, a starting point for possession of 25.6 grammes of “ice” in the circumstances of this case is 18 months’ imprisonment.
I will add 3 months for the latent risk factor, as evidenced by his consumption of some of the drugs in a public toilet and possession of the quantity of drugs in count 1 in a snooker club. The total starting point is 21 months’ imprisonment, which is reduced by one-third for the defendant’s plea of guilty and this results in a sentence of 14 months’ imprisonment.
I also activate the sentence of 3 months’ imprisonment that was suspended in TW1705/12 and I order that it be served consecutively to the sentence in this case.
You are therefore sentenced to 17 months’ imprisonment. Do you understand?
Now, Mr Cheuk, let me tell you, you have been before the courts on a number of occasions in relation to your drug problem and the situation in your case is only going to get worse. It is not going to get better unless you wake up to yourself. Now, you will have some time in prison custody and maybe it will be an opportunity for you to get rid of this habit once and for all.
Try and make your time in prison a positive one, learn a trade, take a course, do whatever needs to be done so that you can improve yourself. And then hopefully you will come out and you will start living a law abiding lifestyle. Otherwise, you are just going to come back before these courts again and again and again and you are going to waste your life. Do you understand?
ACCUSED: Yes, sir.
Court adjourns - 11.01 am
Court resumes - 11.41 am
Appearances as before. Accused present.
COURT: Thank you for coming back. Sorry that I had to bring you back, but I have omitted to explain the sentencing approach in relation to each count and it is just for that purpose and I will give my reasons now for the sentence on each count. It does not change the sentence, but I will explain my reasoning and approach in relation to each count. These are the additional reasons to my reasons for sentence.
I gave the resultant sentence of the two counts, but I need to explain my approach in relation to each count. On count 1, I imposed a starting point of 9 months’ imprisonment with three additional months for the latent risk factor. I reduced it by a third for the plea of guilty, which resulted in a sentence of 8 months’ imprisonment.
On count 2, I imposed a starting point of 15 months’ imprisonment, which I reduced by a third for the plea of guilty, which resulted in a sentence of 10 months’ imprisonment.
The combined sentences of the two counts was 18 months’ imprisonment and taking into account the totality principle, I reduced it to 14 months’ imprisonment. I made the activated suspended sentence of 3 months’ imprisonment consecutive to that sentence, and the total sentence was 17 months’ imprisonment.
Thank you, I do not think there is anything further that I need to address or deal with, but thank you for coming back. Is there anything?
MR LEE: So, for count 2 there is no latent risk factor?
COURT: No, there is not a latent risk factor.
MR LEE: Yes.
COURT: It was in relation to count 1.
MR LEE: And I have just -- one question just popped up in mind and I don’t know whether the court announced that the criminal record is recorded for the possession of dangerous drugs. Because I can’t find the provision now, but according to my experience in Duty Lawyer Scheme, they would normally remind me that whether the court has recorded a criminal record for the possession of dangerous drugs. But anyway, I think the criminal record would be recorded.
COURT: Sorry, I don’t understand the point you’re making. For what purpose?
MR LEE: To my understanding, there is some situation that when a defendant is facing with possession of dangerous drugs, there is no criminal record would be recorded. But I can’t find the authority right now.
COURT: So, for what purpose? I’m not with you, I don't know what you’re talking about, what practice are you talking about and for what reason would this be done.
MR LEE: For the reason is whether this case, if the criminal record should be recorded in the criminal record of the defendant.
COURT: But of course it will, he’s pleaded guilty to an offence. Why would it not be included in the criminal record?
MR LEE: In that case I withdraw my submission.
COURT: Well, no, Ms Leung, can you help me on this?
MS LEUNG: Yes, in my experience, I’ve never heard of this, this sort of practice.
COURT: You haven’t heard this before?
MS LEUNG: But maybe in record, doing this, which I don't know. But in any event, for High Court case, for this sort of case, I would believe that it will be...
COURT: It’s part of the criminal record.
MS LEUNG: Yes.
MR LEE: Yes. In that case, I may be over cautious. I apologise.
COURT: Well, you may be raising something that’s not a practice here in the High Court, but I’ve not heard of this.
MR LEE: Indeed.
COURT: Unless there may be a case where it would not be recorded as a criminal record? It would have to be, unless there is some provision that applies to that specific offence.
MR LEE: Yes. I think I need to do some research about it. I’ll be making -- I withdraw that.
COURT: All right. Anyway, it’s not going to impact on this case.
MR LEE: Yes.
COURT: Right. Thank you.
MR LEE: Thank you, my Lord.
Court adjourns - 11.45 am
Court resumes - 11.52 am
Appearances as before. Accused present.
MR LEE: Sorry, my Lord.
COURT: I hope this will be the last time we see each other. I gather you’re wanting an explanation. I have used the expression, “the combined sentences of the two counts,” which I have made consecutive to each other. So the two sentences which I should have made clear, and I will correct for the record the statement, “the combined sentences of the two counts”, by ordering that they be consecutive, was 18 months’ imprisonment. And taking into account the totality principle, I reduce it to 14 months.
So, the sentence as a total consecutive sentence for the two counts is 18 months’ imprisonment. I trust that explains it to you. It is then reduced, taking into account the totality principle, to 14 months’ imprisonment. That is the end sentence. And then there is 3 months added consecutively because that is the sentence of the suspended sentence that has been activated.
So, do we understand that?
MR LEE: Yes, my Lord.
COURT: Right.
MR LEE: Thank you, my Lord.
COURT: So, for the record, I will put that where I have said,
“the combined sentences,” I thought it was implicit by my statement, “the combined sentences,” that I am making them consecutive, but I will, for the record, make sure it is stated that the combined sentences of the two counts I ordered to be consecutive was 18 months’ imprisonment.
MR LEE: Yes.
COURT: Is that in order?
MR LEE: No any further submissions.
COURT: Nothing further, no, and you don’t want to resurrect your previous application?
MR LEE: No.
COURT: No? That’s good to hear.
Court adjourns - 11.54 am
14 July 2014