HKSAR v. Poon Yat Shing

DCCC 195/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 195 OF 2014

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REASONS FOR SENTENCE

The defendant faces a charge of "Trafficking in a dangerous drug". He pleaded not guilty to "Trafficking", but guilty to "Possession". The prosecution accepted his guilty plea to a lesser charge. The dangerous drug involved is methamphetamine hydrochloride (commonly known as "ICE") .

Summary of Facts

2.About 1:50 am on 10 January 2014, outside Ground Floor, No.36 Cheung Sha Wan Road, Mongkok, PC 34003 intercepted the defendant for a body search.

3.Upon search, the following items were found in his left front trouser pocket :-

(i) 1 transparent resealable plastic bag containing 3 transparent resealable plastic bags which contained a total of 5.05 grammes of a solid containing 5.03 grammes of methamphetamine hydrochloride; and

(ii) 1 transparent resealable plastic bag containing 4 transparent resealable plastic bags which contained a total of 5.17 grammes of a solid containing 5.14 grammes of methamphetamine hydrochloride.

4.Under caution, the defendant said "Ah Sir, I just bought the ICE in Mongkok for self-consumption.  Give me a chance."  A house search was conducted at the defendant's residence a few hours later.  Nothing illegal was found.

Mitigation & Sentence

5.The defendant is 40 and divorced.  He has 18 conviction records, out of which are 9 "simple possession" offences and 1 "trafficking" offence. Defence counsel Mr. KWAN informed me that the defendant has worked as a waiter most of the time.  In the course of mitigation, Mr. KWAN invited the court to follow the 3-step approach laid down by the Court of Appeal in HKSAR v WAN Sheung Sum [2000] 1 HKLRD 405.  Regarding the latent risk factor, Mr. KWAN submitted that the risk is low because no trafficking paraphernalia was found in the defendant's home.

6.A total of 10.17 grammes of ICE are involved in this case.  Had the defendant been convicted of "trafficking" in that quantity, the sentence would have been 7 years' imprisonment[1]. Based on the quantity of ICE involved and the defendant's background, an immediate custodial sentence is inevitable in this case.  Since the defendant has been remanded in jail custody for 8 months, it follows that he is no longer a drug dependant as revealed in his DATC Report.

7.When determining the proper starting point, I have borne in mind the 3-step approach laid down in WAN Sheung Sum.  First, the defendant being a repeated offender of "simple possession", for 10.17 grammes of ICE, I adopt a starting point of 18 months' imprisonment.  Second, the defendant has 1 previous record of "Trafficking".  Furthermore, the quantity of the ICE itself must be a latent risk factor.  On the other hand, in the absence of any evidence indicative of trafficking, the latent risk cannot be regarded as high in this case.  I will add 6 months to reflect it.  In other words, the starting point shall be 24 months.

8.The defendant has pleaded guilty to "Possession" at the outset.  I will give him the usual one-third discount, reducing the sentence to 16 months. Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence I impose is 16 months' imprisonment.