A A
DCCC406/2010
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 406 OF 2010 C
D
---------------------- D
HKSAR
E E
v.
F Leung Chi-ho F
G ---------------------- G
Before: H H Judge Tallentire
H Date: 14 June 2010 at 9.48 am H
Present: Miss Chan Sze-yan, PP, of the Department of Justice,
for HKSAR
I Mr Lee Chi-wai, Norman, of Peter K H Wong & Co., I
assigned by the Director of Legal Aid, for the
J Defendant J
Offence: (1) Trafficking in a dangerous drug (販運危險藥物)
(2) Trafficking in dangerous drugs (販運危險藥物)
K K
(3) Possession of arms without a licence (無牌管有槍械)
L --------------------- L
Reasons for Sentence
M M
---------------------
N N
1. Defendant, you pleaded guilty to two offences of
trafficking in dangerous drugs, each contrary to section 4(1)(a)
O O
and (3) of the Dangerous Drugs Ordinance, Cap.134, and to a
P single offence of possession of arms without a licence, contrary P
to section 13 of the Firearms and Ammunition Ordinance, Cap.238.
Q Q
2. You admitted the brief facts and I convicted you.
R R
3. The brief facts were as follows.
S S
T 4. At about 1.28 am on 8 February last, you were observed T
leaving Room 2415, Block 3, Po Tin Estate, Tuen Mun. Police
U officers intercepted you and took you back to the flat. U
CRT31/14.6.2010/ML 1 DCCC406/2010/Sentence
V V
A A
5. Upon search, they found on top of a cabinet a quantity
B B
of suspected dangerous drugs, that was “Ice”, and midazolam
C tablets (Exhibit 1). Also they found a number of empty plastic C
bags, a pair of scissors, an electronic balance and $10,483.60.
D This was Charge 2. D
E E
6. An air pistol (“E2”) and some ball bearings were also
found from a black shoulder bag - Charge 3.
F F
G 7. A small packet of suspected “Ice” (“E3”) was found in G
your left front pocket, which is Charge 1.
H H
8. Interviewed under caution and recorded on video, you
I I
admitted E1 and E3 were “Ice” and midazolam tablets bought from
one “Ah Lung”. The “Ice” cost $3,200 and the midazolam $40 per
J J
tablet. You admitted E1 and E3 were for your own consumption,
K
but you would share them with your friends in the neighbourhood. K
You admitted E2 was purchased in Ap Liu Street, Sham Shui Po,
L for $500. L
M 9. E1 was found to contain two plastic bags containing M
6.77 grammes of crystalline containing 6.41 grammes of
N N
methamphetamine hydrochloride and five foil packs containing
35 tablets containing 0.5 grammes of midazolam.
O O
P 10. E3 was one plastic bag containing 2.18 grammes of a P
crystalline solid containing 2.02 grammes of methamphetamine
Q hydrochloride. Q
R R
11. Upon examination by a forensic expert, E2 was found to
be within the legal definition of “arms” under the Firearms and
S S
Ammunition Ordinance, Cap.238, the Laws of Hong Kong. E2 was
T capable of discharging a 4.55 millimetre calibre ball-bearing T
projectile with muzzle energy at 2.46 joules.
U U
CRT31/14.6.2010/ML 2 DCCC406/2010/Sentence
V V
A A
12. You admitted 10 previous offences, three of which were
drug-related on seven previous occasions. As you claimed that
B B
some of the drugs would have been for self-consumption, I
C adjourned the case and called for a DATC report to assess your C
status.
D D
13. That report concluded that you were no longer drug
E E
dependant, having been remanded in custody for about 4 months.
The logical conclusion therefore is that at the time of the
F F
offence, you could well have been a drug dependant. I am
G prepared to give you the benefit of the doubt on that matter. G
H 14. Mr Lee informed me that you accepted the DATC report H
and proceeded to enter mitigation.
I I
15. He stressed that you would have used some of the
J J
dangerous drugs yourself.
K K
16. Mr Lee pointed out the tariff to be some 3 to 7 years,
L quite rightly so, the quantity of “Ice” being 8.43 grammes. He L
produced some authorities which were extremely helpful, one of
M which involved a very similar quantity of “Ice” which is M
slightly smaller, where a starting point of 5½ years had been
N N
adopted.
O O
17. In respect of the small quantity of midazolam, he
P suggested and provided authority to this effect that the P
sentence for the “Ice” should be held to encompass that for the
Q less serious drug. I accept and agree with that approach. Q
R R
18. In respect of the third offence, which was a single
air gun, he pointed out it was just over the permitted limits.
S S
As I understood it, the prosecution accept that it was towards
T the lower end of the scale in terms of power. T
U 19. I turn now to the sentence. U
CRT31/14.6.2010/ML 3 DCCC406/2010/Sentence
V V
A A
20. I do accept from the mitigation, the contents of the
B B
DATC report, the facts and the nature of the dangerous drugs
C that a certain quantity would have been for self-consumption. It C
may be stating the obvious, but the percentage is impossible to
D estimate. Also I accept that the sentence for midazolam should D
be covered by that for the “Ice”.
E E
21. In respect of the single air gun, it does appear to be
F F
just over the permitted strength, and there is no suggestion
G that it had or would be used in the commission of any crime. G
H 22. My approach has been to treat the amount of “Ice” H
encompassed by Charges 1 and 2 as one amount for the purpose of
I I
sentence, returning sentences which are concurrent. The total
amount of “Ice” involved is 8.43 grammes.
J J
K
23. On Charge 1, I took as a starting point of 3 years’ K
imprisonment, reduced to 2.
L L
24. On Charge 2, to give effect to what I have just said,
M I took as a starting point 5½ years’ imprisonment, reduced by M
6 months because of the concept of self-consumption to 5 years.
N N
25. Additionally you have pleaded guilty, so therefore you
O O
are entitled to and will receive a further one-third discount
P from that sentence. P
Q 26. Therefore the sentence is 40 months’ imprisonment Q
concurrent to the 2 years on Charge 1.
R R
27. On Charge 3, relating to the single air gun which was
S S
of relatively low strength and could not have been said or
T intended to be used in any crime, I took as a starting point T
6 months’ imprisonment, reduced to 4.
U U
CRT31/14.6.2010/ML 4 DCCC406/2010/Sentence
V V
A A
28. To give effect to the principle of totality, 2 months
of that will be served concurrently with the 40 months imposed
B B
on Charges 1 and 2, and 2 months will be served consecutively.
C C
29. That is an overall total of 42 months’ imprisonment;
D that is 3½ years. D
E E
F F
G G
Tallentire
District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT31/14.6.2010/ML 5 DCCC406/2010/Sentence
V V
A A
DCCC406/2010
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 406 OF 2010 C
D
---------------------- D
HKSAR
E E
v.
F Leung Chi-ho F
G ---------------------- G
Before: H H Judge Tallentire
H Date: 14 June 2010 at 9.48 am H
Present: Miss Chan Sze-yan, PP, of the Department of Justice,
for HKSAR
I Mr Lee Chi-wai, Norman, of Peter K H Wong & Co., I
assigned by the Director of Legal Aid, for the
J Defendant J
Offence: (1) Trafficking in a dangerous drug (販運危險藥物)
(2) Trafficking in dangerous drugs (販運危險藥物)
K K
(3) Possession of arms without a licence (無牌管有槍械)
L --------------------- L
Reasons for Sentence
M M
---------------------
N N
1. Defendant, you pleaded guilty to two offences of
trafficking in dangerous drugs, each contrary to section 4(1)(a)
O O
and (3) of the Dangerous Drugs Ordinance, Cap.134, and to a
P single offence of possession of arms without a licence, contrary P
to section 13 of the Firearms and Ammunition Ordinance, Cap.238.
Q Q
2. You admitted the brief facts and I convicted you.
R R
3. The brief facts were as follows.
S S
T 4. At about 1.28 am on 8 February last, you were observed T
leaving Room 2415, Block 3, Po Tin Estate, Tuen Mun. Police
U officers intercepted you and took you back to the flat. U
CRT31/14.6.2010/ML 1 DCCC406/2010/Sentence
V V
A A
5. Upon search, they found on top of a cabinet a quantity
B B
of suspected dangerous drugs, that was “Ice”, and midazolam
C tablets (Exhibit 1). Also they found a number of empty plastic C
bags, a pair of scissors, an electronic balance and $10,483.60.
D This was Charge 2. D
E E
6. An air pistol (“E2”) and some ball bearings were also
found from a black shoulder bag - Charge 3.
F F
G 7. A small packet of suspected “Ice” (“E3”) was found in G
your left front pocket, which is Charge 1.
H H
8. Interviewed under caution and recorded on video, you
I I
admitted E1 and E3 were “Ice” and midazolam tablets bought from
one “Ah Lung”. The “Ice” cost $3,200 and the midazolam $40 per
J J
tablet. You admitted E1 and E3 were for your own consumption,
K
but you would share them with your friends in the neighbourhood. K
You admitted E2 was purchased in Ap Liu Street, Sham Shui Po,
L for $500. L
M 9. E1 was found to contain two plastic bags containing M
6.77 grammes of crystalline containing 6.41 grammes of
N N
methamphetamine hydrochloride and five foil packs containing
35 tablets containing 0.5 grammes of midazolam.
O O
P 10. E3 was one plastic bag containing 2.18 grammes of a P
crystalline solid containing 2.02 grammes of methamphetamine
Q hydrochloride. Q
R R
11. Upon examination by a forensic expert, E2 was found to
be within the legal definition of “arms” under the Firearms and
S S
Ammunition Ordinance, Cap.238, the Laws of Hong Kong. E2 was
T capable of discharging a 4.55 millimetre calibre ball-bearing T
projectile with muzzle energy at 2.46 joules.
U U
CRT31/14.6.2010/ML 2 DCCC406/2010/Sentence
V V
A A
12. You admitted 10 previous offences, three of which were
drug-related on seven previous occasions. As you claimed that
B B
some of the drugs would have been for self-consumption, I
C adjourned the case and called for a DATC report to assess your C
status.
D D
13. That report concluded that you were no longer drug
E E
dependant, having been remanded in custody for about 4 months.
The logical conclusion therefore is that at the time of the
F F
offence, you could well have been a drug dependant. I am
G prepared to give you the benefit of the doubt on that matter. G
H 14. Mr Lee informed me that you accepted the DATC report H
and proceeded to enter mitigation.
I I
15. He stressed that you would have used some of the
J J
dangerous drugs yourself.
K K
16. Mr Lee pointed out the tariff to be some 3 to 7 years,
L quite rightly so, the quantity of “Ice” being 8.43 grammes. He L
produced some authorities which were extremely helpful, one of
M which involved a very similar quantity of “Ice” which is M
slightly smaller, where a starting point of 5½ years had been
N N
adopted.
O O
17. In respect of the small quantity of midazolam, he
P suggested and provided authority to this effect that the P
sentence for the “Ice” should be held to encompass that for the
Q less serious drug. I accept and agree with that approach. Q
R R
18. In respect of the third offence, which was a single
air gun, he pointed out it was just over the permitted limits.
S S
As I understood it, the prosecution accept that it was towards
T the lower end of the scale in terms of power. T
U 19. I turn now to the sentence. U
CRT31/14.6.2010/ML 3 DCCC406/2010/Sentence
V V
A A
20. I do accept from the mitigation, the contents of the
B B
DATC report, the facts and the nature of the dangerous drugs
C that a certain quantity would have been for self-consumption. It C
may be stating the obvious, but the percentage is impossible to
D estimate. Also I accept that the sentence for midazolam should D
be covered by that for the “Ice”.
E E
21. In respect of the single air gun, it does appear to be
F F
just over the permitted strength, and there is no suggestion
G that it had or would be used in the commission of any crime. G
H 22. My approach has been to treat the amount of “Ice” H
encompassed by Charges 1 and 2 as one amount for the purpose of
I I
sentence, returning sentences which are concurrent. The total
amount of “Ice” involved is 8.43 grammes.
J J
K
23. On Charge 1, I took as a starting point of 3 years’ K
imprisonment, reduced to 2.
L L
24. On Charge 2, to give effect to what I have just said,
M I took as a starting point 5½ years’ imprisonment, reduced by M
6 months because of the concept of self-consumption to 5 years.
N N
25. Additionally you have pleaded guilty, so therefore you
O O
are entitled to and will receive a further one-third discount
P from that sentence. P
Q 26. Therefore the sentence is 40 months’ imprisonment Q
concurrent to the 2 years on Charge 1.
R R
27. On Charge 3, relating to the single air gun which was
S S
of relatively low strength and could not have been said or
T intended to be used in any crime, I took as a starting point T
6 months’ imprisonment, reduced to 4.
U U
CRT31/14.6.2010/ML 4 DCCC406/2010/Sentence
V V
A A
28. To give effect to the principle of totality, 2 months
of that will be served concurrently with the 40 months imposed
B B
on Charges 1 and 2, and 2 months will be served consecutively.
C C
29. That is an overall total of 42 months’ imprisonment;
D that is 3½ years. D
E E
F F
G G
Tallentire
District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT31/14.6.2010/ML 5 DCCC406/2010/Sentence
V V