A A
DCCC70/2014
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 70 OF 2014
C C
--------------------
D HKSAR D
v.
E E
LAW HOI FU
F F
--------------------
G G
Before: District Judge W.K. Kwok
Date: 11th April 2014 at 3:26 pm
H Present: Mr John Hemmings, Counsel on fiat for HKSAR H
Mr Freddy Woon Jee Quan instructed by Messrs Tsangs
I assigned by the Director of Legal Aid, for Defendant. I
Offence: (1)&(2)Possession of a dangerous drug(管有危險藥物)
J (3) Possession of apparatuses fit and intended for the J
inhalation of a dangerous drug
K
(管有適合於及擬用作吸服危險藥物的器具) K
(4) Possession of prohibited weapon(管有違禁武器)
L L
---------------------
M M
Reasons for Sentence
N --------------------- N
O 1. There are 4 charges in the Amended Charge Sheet. Charges 1 O
to 3 are all for offences under the Dangerous Drugs Ordinance,
P Chapter 134, Laws of Hong Kong. Charges 1 and 2 are each for P
the offence of possession of a dangerous drug 1 . Charge 3 is for
Q the offence of possession of apparatuses fit and intended for Q
the inhalation of a dangerous drug 2. Charge 4 is for the offence
R of possession of a prohibited weapon 3 . The defendant pleads R
guilty to all the charges.
S S
T T
1
Contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance.
2
Contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance.
U 3
Contrary to section 4 of the Weapons Ordinance, Chapter 217. U
1
V V
A Facts A
2. Around 9:15 p.m. on 5 November 2013, PC5473 stopped the
B defendant outside Gold Way Industrial Centre in Kwai Chung and B
searched him. PC5473 found a re-sealable plastic bag of a
C substance commonly known as “ice” inside the right front C
trousers’ pocket of the defendant. He then arrested the
D defendant. Under caution, the defendant said that the bag of D
ice was for his own consumption.
E E
3. The Government Chemist later confirmed that the substance
F was 3.17 grammes of a crystalline solid containing 3.11 grammes F
of methamphetamine hydrochloride (Charge 1).
G G
4. The police then executed a search warrant into a flat in
Block B of Gold Way Industrial Centre (Flat A) which was owned
H H
by the defendant’s mother and brother but the defendant had
resided there since 2009 and used it for storage of goods.
I I
PC33559 searched the flat and found on the bedroom desk two
glass inhaling devices, a plastic box containing 3 re-sealable
J J
plastic bags of ice, two electronic scales with lid, and one re-
sealable plastic bag containing a pile of 92 re-sealable plastic
K K
bags.
L L
5. PC5473 then arrested the defendant inside Flat A. Under
caution, the defendant stated that the 3 bags of ice were for
M M
his own consumption, and that the two inhaling devices were used
by him to consume ice.
N N
6. The Government Chemist later confirmed that these 3 re-
O O
sealable plastic bags contained a total of 1.73 grammes of a
crystalline solid containing 1.70 grammes of methamphetamine
P P
hydrochloride (Charge 2), and that one of the two inhaling
devices contained 34 millilitres of a liquid containing traces
Q Q
of methamphetamine (Charge 3).
R 7. Later on the same day, the police executed another search R
warrant into another flat in Block A of Gold Way Industrial
S Centre (Flat B). It was a flat rented by the defendant for S
storage of goods. WPC5940 searched Flat B and found on the
T cupboard inside the living room a big plastic box containing an T
extendible baton placed inside a nylon bag and wrapped in a
U U
2
V V
A black plastic bag. She also found a pile of 102 re-sealable A
plastic bags inside a big re-sealable plastic bag.
B B
8. PC5473 then arrested the defendant for possession of a
C prohibited weapon. Under caution, the defendant stated that he C
found the baton in a rubbish pile (Charge 4).
D D
9. The Government Chemist later confirmed that the extendible
E baton was a gravity-operated steel baton. E
F 10. During a subsequent video-recorded interview, the defendant F
explained the 4 offences and some of the exhibits seized as
G
follows:- G
(1) He purchased around 7 grammes of ice from Ah Shing on 3
November 2013 in Sham Shui Po at the price of HK$1,000. He
H H
then split them into 4 re-sealable plastic bags for ease of
carrying. He sometimes would use the re-sealable plastic
I I
bags found inside Flat A and Flat B to pack dangerous drugs
but only for his own use. On the day of arrest, he took
J J
one bag of ice with him when he left Flat A to buy drinks
because he did not want his girlfriend who was in Flat A at
K K
that time to discover the ice.
(2) He had taken ice for 5 to 6 years. He usually smoked
L L
0.5 grammes of ice which would give him 4 to 5 hits every
one or two days. He usually smoked ice in Flat A.
M M
(3) He purchased the two inhaling devices in Temple Street
two months ago at the price of HK$100 for consumption of
N N
ice.
(4) He found the extendible baton in a nearby rubbish
O O
disposal area about one to two months ago. He thought it
was a torch. He took it back to Flat B and did not open
P P
the nylon bag ever since.
Q Q
Criminal record
11. The defendant has 10 previous conviction involving 16
R charges. In 1987, he was fined $4,000 for the offence of R
possession of dangerous drugs for the purpose of unlawful
S trafficking. He has no other conviction relating to dangerous S
drugs. He was last discharged from prison on 22 September 1999
T after serving sentences for offences of going equipped for T
stealing and handling stolen goods.
U U
3
V V
A Personal and family background A
12. The defendant is 48 years old. He was born in Hong Kong.
B He studied up to Form 3. He had previously worked as an B
electrical lighting and renovation worker and as a lorry driver.
C After his last discharge from prison, he started a trading C
business in second hand furniture, electronic goods and computer
D parts and earned about $8,000 to $12,000 a month. His father D
has already passed away. His mother is now 85 years old with
E eye problem. He has 7 siblings all live apart from him. He got E
married in 1994 but divorced in 2001. He has a daughter now
F aged 18 but lives apart from him. He lived alone prior to his F
present remand.
G G
Outstanding offence
13. The defendant committed this offence after he had jumped
H H
bail for another offence of unlawful trafficking in dangerous
drugs. For that other offence, he was arrested on 7 August 2012
I I
and was granted bail 2 days later. However, he jumped bail for
that offence on 22 May 2013 when he had to attend a pre-trial
J J
review in the Court of First Instance of the High Court. After
his arrest for the present case, he was remanded in custody for
K K
both offences. He will now stand trial for that other offence
on 16 June 2014.
L L
Drug addiction treatment centre suitability report
M M
14. According to the defendant’s own reporting, he started
abusing ice in 2008 under the influence of his dubious peers.
N N
Prior to his remand, he abused ice about once or twice a week,
and he last took ice in November 2013. He has not received
O O
either voluntary or compulsory drug addiction treatment before.
Since the defendant is not a drug dependant now, he is
P P
considered not suitable for admission into a drug addiction
treatment centre.
Q Q
Mitigation
R 15. Learned counsel for the defendant submitted that Charges 1 R
to 3 should be dealt with together since they all related to the
S drug addiction of the defendant. Upon instruction, counsel S
stated that the defendant consumed ice at the average rate of
T once or twice a week, but he would consume more for up to once T
every two days if he needed to work overnight so as to keep him
U awaken. Counsel submitted that in light of the small quantity U
4
V V
A of ice involved, there was little risk that the drug would fall A
into the hands of other people. As for the prohibited weapon,
B counsel submitted that the weapon in question would not cause B
serious injuries and that there was no evidence that the
C defendant would use it for any unlawful purpose. Counsel C
stressed that the defendant pleaded guilty to all charges and
D asked for a sentence as lenient as possible for the defendant. D
E Reasons for sentence E
16. It is quite clear that a custodial sentence has to be
F imposed in the present case. First, for the offences in Charges F
1 and 2, the total quantity of ice was 4.81 grammes. While this
G
quantity was not substantial, it was not small either. Second, G
for the offences in Charges 3 and 4, while Charge 3 was
connected with his drug addiction, the offence in Charge 4 was
H H
of a completely different nature which was serious in itself.
Third, all these offences were committed by him after the
I I
defendant had jumped bail for another serious offence. Fourth,
although the defendant had served sentences in prison before,
J J
they had no effect in deterring him from committing further
offences. Fifth, he is due to stand trial for another serious
K K
offence in the Court of First Instance, and he is now being
remanded in custody pending trial. With these factors in mind,
L L
it is simply not appropriate to impose a sentence such as
probation, community service order or fine because such a
M M
sentence will not adequately reflect the gravity of the offences,
and it will in any event be impracticable to impose probation or
N N
community service order on him because he is now in custody for
another matter.
O O
17. As to the form of custodial sentence, since the defendant
P P
is not suitable for admission into a drug addiction treatment
centre, the only viable sentencing option is imprisonment.
Q Q
18. As far as the quantum of the prison terms is concerned,
R Charges 1 and 2 shall be dealt with together since they are both R
for the offences of possession of a dangerous drugs, and the
S defendant possessed them at the same time though some were found S
on his person and some were found in his living place.
T T
19. According to the Court of Appeal in the case of HKSAR v Mok
U U
5
V V
A Cho Tik 4 , the appropriate starting point for possession of a A
dangerous drug was between 12 and 18 months’ imprisonment.
B B
20. In light of the nature and quantity of ice involved but
C also the fact that the defendant did not have any criminal C
conviction relating to a dangerous drug since 1987, I find the
D appropriate starting point for each of Charges 1 and 2 to be 13 D
months’ imprisonment.
E E
21. As to whether the starting point should be increased on the
F ground that there was a latent risk that the drugs would be F
disseminated to others, the Court of Appeal made it clear that
G
it was the actual risk of dissemination that the sentencing G
judge should consider: HKSAR v Chan Tai Wah5.
H H
22. In the present case, when the defendant was questioned by
the police, he explained why he carried the drug in the street
I I
and why he had the re-sealable plastic bags. There is nothing
in the evidence to show that his explanation must be untrue, and
J J
I have to give him benefit of the doubt. I note that he had
given various accounts about the rate of his drug consumption,
K K
firstly to the police in his video recorded interview, secondly,
to the in-take officer who prepared the DATC report, and lastly
L L
to his learned counsel. Again, I give him benefit of the doubt
and shall sentence him on the basis that what he has told his
M M
counsel is true. In light of the defendant’s consumption rate
and the quantity of ice involved, I accept counsel’s submission
N N
that the actual risk of dissemination minimal. Accordingly, I
shall not adjust the starting point upward on the latent risk
O O
ground.
P P
23. The defendant however committed these offences after he had
jumped bail for another drug offence. This was an aggravating
Q Q
factor that must be taken into account: HKSAR v Yuen Gang Shing 6;
HKSAR v Woo Chung Hing 7. To reflect this aggravating feature, I
R adjust the starting point upward by two months to 15 months’ R
imprisonment for each of Charges 1 and 2.
S S
4
[2001] 1 HKC 261.
T T
5
CACC476/2011.
6
CACC303/1997.
U 7
CACC19/2002. U
6
V V
A 24. As far as Charge 3 is concerned, the defendant possessed A
the two inhaling devices for consumption of ice in his living
B place. The appropriate starting point is 4½ months: The Queen v B
Law Sing 8 . Since the defendant committed this offence after he
C had jumped bail for his other offence, I adjust the starting C
point upward to 5 months’ imprisonment.
D D
25. As far as Charge 4 is concerned, it had been said that
E possession of prohibited weapon such as an extendable baton was E
a serious offence, and that the greater the potential that the
F weapon would get into the public arena the more serious the F
offence would be: HKSAR v Lee Chun Kit 9 . In the present case,
G
there is no evidence that the defendant would carry the G
extendable baton with him in a public place. Nor was there
evidence that he would use it for an unlawful purpose. Under
H H
these circumstances, I adopt one month imprisonment as the
starting point, and adjust it upward to 1½ months on the ground
I I
that the offence was committed by him after he had jumped bail
for the other offence.
J J
26. I have already considered the mitigation advanced on behalf
K K
of the defendant. I find that the only mitigating factor is the
defendant’s guilty plea, for which he will be given one-third
L L
discount of the sentences. There is no other valid reason for
reducing the sentence.
M M
For these reasons, the defendant is sentenced as follows:
N N
Charge 1 10 months’ imprisonment
Charge 2 10 months’ imprisonment
O O
Charge 3 Imprisonment for 3 months and 10 days.
Charge 4 One month’s imprisonment
P P
27. As to whether these sentences should run concurrently or
Q Q
consecutively, I bear in mind the principle of totality. I note
that while the overall sentence must not be too lengthy, it must
R also adequately reflect the overall criminality of the offences. R
S 28. It is quite clear that the sentences for Charges 1 and 2 S
should run concurrently. As far as the sentence for Charge 3 is
T T
8
HCMA890/1996.
U 9
[2004] 1 HKC 573. U
7
V V
A concerned, the offence was also drug-related, but it will not be A
right to order this sentence to run wholly concurrently with the
B sentences for Charges 1 and 2 because that will mean the B
defendant receives no punishment for this additional offence. I
C therefore order that one month of this sentence should run C
consecutively to the sentences for Charges 1 and 2.
D D
29. As far as the sentence for Charge 4 is concerned, this
E offence is of a completely different nature and is wholly E
separate from the other offences. I am of the view that a
F consecutive sentence should be imposed. I also consider that F
even if this sentence is to run wholly consecutively to the
G
other sentences, the overall term will not be excessive. For G
these reasons, I order that the sentence for Charge 4 should run
consecutively to the sentences for the other 3 charges.
H H
30. For these reasons, the defendant has to serve a total of 12
I I
months’ imprisonment.
J J
K K
W.K. Kwok
District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
8
V V
HKSAR v. LAW HOI FU
案件基本資料
案件名稱：HKSAR v Law Hoi Fu
法院：區域法院 (District Court)
法官：W.K. Kwok
判決日期：2014年4月11日
案情摘要
被告 Law Hoi Fu 在 2013 年 11 月 5 日被警方截查，隨後在兩處物業中被搜出共 4.81 克冰毒、兩件吸毒器具及一支伸縮警棍。被告承認所有控罪，聲稱毒品僅供個人消費，而警棍是在垃圾堆中發現的。值得注意的是，被告在犯下本案罪行時，正處於另一宗毒品販運案的跳保 (jumped bail) 狀態。
法官首先引用 HKSAR v Mok Cho Tik 確立管有毒品的 starting point 為 12 至 18 個月。關於 dissemination risk，法官根據 HKSAR v Chan Tai Wah 認為應考慮 actual risk 而非 latent risk，因被告消費率與數量相符，故不調高起點。然而，跳保狀態根據 HKSAR v Yuen Gang Shing 等 precedent 屬嚴重加重因素，故將各項起點調高。最後，基於 totality principle，性質相近的毒品罪行部分併行，但完全不同性質的武器罪行則須 consecutive 執行。
引用案例與條文
引用 HKSAR v Mok Cho Tik 確定量刑起點；HKSAR v Chan Tai Wah 區分 actual 與 latent risk；HKSAR v Yuen Gang Shing 及 HKSAR v Woo Chung Hing 確立跳保為 aggravating factor；The Queen v Law Sing 關於吸毒器具的量刑；HKSAR v Lee Chun Kit 關於違禁武器的嚴重性。
### 案件基本資料
- 案件名稱：HKSAR v Law Hoi Fu
- 法院：區域法院 (District Court)
- 法官：W.K. Kwok
- 判決日期：2014年4月11日
### 案情摘要
被告 Law Hoi Fu 在 2013 年 11 月 5 日被警方截查，隨後在兩處物業中被搜出共 4.81 克冰毒、兩件吸毒器具及一支伸縮警棍。被告承認所有控罪，聲稱毒品僅供個人消費，而警棍是在垃圾堆中發現的。值得注意的是，被告在犯下本案罪行時，正處於另一宗毒品販運案的跳保 (jumped bail) 狀態。
### 核心法律爭議
本案的核心 legal issue 在於如何決定量刑 (sentencing) 的起點及調整因素。辯方主張毒品數量少且僅供自用，風險低，應從輕處理。法官需考慮：(1) 毒品數量是否構成 dissemination risk；(2) 跳保狀態是否屬於 aggravating factor；(3) 不同性質罪行（毒品與武器）的刑期應採取 concurrent 還是 consecutive 方式執行。
### 判決理由
法官首先引用 HKSAR v Mok Cho Tik 確立管有毒品的 starting point 為 12 至 18 個月。關於 dissemination risk，法官根據 HKSAR v Chan Tai Wah 認為應考慮 actual risk 而非 latent risk，因被告消費率與數量相符，故不調高起點。然而，跳保狀態根據 HKSAR v Yuen Gang Shing 等 precedent 屬嚴重加重因素，故將各項起點調高。最後，基於 totality principle，性質相近的毒品罪行部分併行，但完全不同性質的武器罪行則須 consecutive 執行。
### 引用案例與條文
引用 HKSAR v Mok Cho Tik 確定量刑起點；HKSAR v Chan Tai Wah 區分 actual 與 latent risk；HKSAR v Yuen Gang Shing 及 HKSAR v Woo Chung Hing 確立跳保為 aggravating factor；The Queen v Law Sing 關於吸毒器具的量刑；HKSAR v Lee Chun Kit 關於違禁武器的嚴重性。
### 裁決與命令
被告對四項控罪均被判處監禁。第一及第二項（管有毒品）各判 10 個月（併行）；第三項（管有器具）判 3 個月 10 日（其中一個月 consecutive）；第四項（管有武器）判 1 個月（consecutive）。總刑期為 12 個月監禁。
### 判決啟示
本案強調了跳保 (jumping bail) 在量刑中作為 aggravating factor 的顯著影響，即使原罪行數量不大，但跳保行為會導致法官調高 starting point。同時體現了 totality principle 在處理性質迥異之罪行時，傾向採取 consecutive sentence 以反映整體 criminality。
---
### 免責聲明
本摘要由人工智能自動生成，內容可能存在錯誤或遺漏，僅供參考，不構成法律意見。如需法律建議，請諮詢合資格律師。### Case Details
- Case Name: HKSAR v Law Hoi Fu
- Court: District Court
- Judge: W.K. Kwok
- Date of Judgment: 11 April 2014
### Factual Background
The defendant was arrested with 3.11g of methamphetamine. Subsequent searches of two flats revealed another 1.70g of methamphetamine, two inhaling devices, and a gravity-operated steel baton. The defendant pleaded guilty to possession of dangerous drugs, possession of drug apparatus, and possession of a prohibited weapon. Crucially, the defendant had jumped bail for a separate drug trafficking charge at the time of these offences.
### Key Legal Issues
The primary legal issue concerned the determination of the appropriate sentence. The defense argued for leniency based on the small quantity of drugs for personal use and the lack of intent to use the weapon unlawfully. The court had to decide whether the risk of dissemination existed and how the defendant's status as a bail-jumper should affect the starting point of the sentences.
### Ratio Decidendi
The judge applied the starting point of 12-18 months for drug possession per HKSAR v Mok Cho Tik. Following HKSAR v Chan Tai Wah, the judge found the actual risk of dissemination minimal, thus not increasing the starting point on that ground. However, jumping bail was treated as a significant aggravating factor per HKSAR v Yuen Gang Shing, leading to an upward adjustment. Applying the totality principle, the judge ordered concurrent sentences for similar drug charges but consecutive sentences for the weapon charge due to its different nature.
### Key Precedents & Statutes
HKSAR v Mok Cho Tik (starting point for possession); HKSAR v Chan Tai Wah (actual vs latent risk of dissemination); HKSAR v Yuen Gang Shing and HKSAR v Woo Chung Hing (jumping bail as aggravating factor); The Queen v Law Sing (apparatus sentencing); HKSAR v Lee Chun Kit (prohibited weapons).
### Decision & Orders
The defendant was sentenced to 10 months for Charges 1 and 2 (concurrently), 3 months and 10 days for Charge 3 (one month consecutive), and 1 month for Charge 4 (consecutive). The total effective sentence is 12 months' imprisonment.
### Key Takeaways
The judgment underscores that jumping bail is a severe aggravating factor that justifies increasing the starting point of a sentence. It also demonstrates the application of the totality principle, ensuring that while the overall term is not excessive, it adequately reflects the overall criminality across different types of offences.
---
### Disclaimer
This summary is AI-generated and may contain errors or omissions. It is for reference only and does not constitute legal advice. Please consult a qualified lawyer for professional legal advice.
A A
DCCC70/2014
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 70 OF 2014
C C
--------------------
D HKSAR D
v.
E E
LAW HOI FU
F F
--------------------
G G
Before: District Judge W.K. Kwok
Date: 11th April 2014 at 3:26 pm
H Present: Mr John Hemmings, Counsel on fiat for HKSAR H
Mr Freddy Woon Jee Quan instructed by Messrs Tsangs
I assigned by the Director of Legal Aid, for Defendant. I
Offence: (1)&(2)Possession of a dangerous drug(管有危險藥物)
J (3) Possession of apparatuses fit and intended for the J
inhalation of a dangerous drug
K
(管有適合於及擬用作吸服危險藥物的器具) K
(4) Possession of prohibited weapon(管有違禁武器)
L L
---------------------
M M
Reasons for Sentence
N --------------------- N
O 1. There are 4 charges in the Amended Charge Sheet. Charges 1 O
to 3 are all for offences under the Dangerous Drugs Ordinance,
P Chapter 134, Laws of Hong Kong. Charges 1 and 2 are each for P
the offence of possession of a dangerous drug 1 . Charge 3 is for
Q the offence of possession of apparatuses fit and intended for Q
the inhalation of a dangerous drug 2. Charge 4 is for the offence
R of possession of a prohibited weapon 3 . The defendant pleads R
guilty to all the charges.
S S
T T
1
Contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance.
2
Contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance.
U 3
Contrary to section 4 of the Weapons Ordinance, Chapter 217. U
1
V V
A Facts A
2. Around 9:15 p.m. on 5 November 2013, PC5473 stopped the
B defendant outside Gold Way Industrial Centre in Kwai Chung and B
searched him. PC5473 found a re-sealable plastic bag of a
C substance commonly known as “ice” inside the right front C
trousers’ pocket of the defendant. He then arrested the
D defendant. Under caution, the defendant said that the bag of D
ice was for his own consumption.
E E
3. The Government Chemist later confirmed that the substance
F was 3.17 grammes of a crystalline solid containing 3.11 grammes F
of methamphetamine hydrochloride (Charge 1).
G G
4. The police then executed a search warrant into a flat in
Block B of Gold Way Industrial Centre (Flat A) which was owned
H H
by the defendant’s mother and brother but the defendant had
resided there since 2009 and used it for storage of goods.
I I
PC33559 searched the flat and found on the bedroom desk two
glass inhaling devices, a plastic box containing 3 re-sealable
J J
plastic bags of ice, two electronic scales with lid, and one re-
sealable plastic bag containing a pile of 92 re-sealable plastic
K K
bags.
L L
5. PC5473 then arrested the defendant inside Flat A. Under
caution, the defendant stated that the 3 bags of ice were for
M M
his own consumption, and that the two inhaling devices were used
by him to consume ice.
N N
6. The Government Chemist later confirmed that these 3 re-
O O
sealable plastic bags contained a total of 1.73 grammes of a
crystalline solid containing 1.70 grammes of methamphetamine
P P
hydrochloride (Charge 2), and that one of the two inhaling
devices contained 34 millilitres of a liquid containing traces
Q Q
of methamphetamine (Charge 3).
R 7. Later on the same day, the police executed another search R
warrant into another flat in Block A of Gold Way Industrial
S Centre (Flat B). It was a flat rented by the defendant for S
storage of goods. WPC5940 searched Flat B and found on the
T cupboard inside the living room a big plastic box containing an T
extendible baton placed inside a nylon bag and wrapped in a
U U
2
V V
A black plastic bag. She also found a pile of 102 re-sealable A
plastic bags inside a big re-sealable plastic bag.
B B
8. PC5473 then arrested the defendant for possession of a
C prohibited weapon. Under caution, the defendant stated that he C
found the baton in a rubbish pile (Charge 4).
D D
9. The Government Chemist later confirmed that the extendible
E baton was a gravity-operated steel baton. E
F 10. During a subsequent video-recorded interview, the defendant F
explained the 4 offences and some of the exhibits seized as
G
follows:- G
(1) He purchased around 7 grammes of ice from Ah Shing on 3
November 2013 in Sham Shui Po at the price of HK$1,000. He
H H
then split them into 4 re-sealable plastic bags for ease of
carrying. He sometimes would use the re-sealable plastic
I I
bags found inside Flat A and Flat B to pack dangerous drugs
but only for his own use. On the day of arrest, he took
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one bag of ice with him when he left Flat A to buy drinks
because he did not want his girlfriend who was in Flat A at
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that time to discover the ice.
(2) He had taken ice for 5 to 6 years. He usually smoked
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0.5 grammes of ice which would give him 4 to 5 hits every
one or two days. He usually smoked ice in Flat A.
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(3) He purchased the two inhaling devices in Temple Street
two months ago at the price of HK$100 for consumption of
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ice.
(4) He found the extendible baton in a nearby rubbish
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disposal area about one to two months ago. He thought it
was a torch. He took it back to Flat B and did not open
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the nylon bag ever since.
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Criminal record
11. The defendant has 10 previous conviction involving 16
R charges. In 1987, he was fined $4,000 for the offence of R
possession of dangerous drugs for the purpose of unlawful
S trafficking. He has no other conviction relating to dangerous S
drugs. He was last discharged from prison on 22 September 1999
T after serving sentences for offences of going equipped for T
stealing and handling stolen goods.
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A Personal and family background A
12. The defendant is 48 years old. He was born in Hong Kong.
B He studied up to Form 3. He had previously worked as an B
electrical lighting and renovation worker and as a lorry driver.
C After his last discharge from prison, he started a trading C
business in second hand furniture, electronic goods and computer
D parts and earned about $8,000 to $12,000 a month. His father D
has already passed away. His mother is now 85 years old with
E eye problem. He has 7 siblings all live apart from him. He got E
married in 1994 but divorced in 2001. He has a daughter now
F aged 18 but lives apart from him. He lived alone prior to his F
present remand.
G G
Outstanding offence
13. The defendant committed this offence after he had jumped
H H
bail for another offence of unlawful trafficking in dangerous
drugs. For that other offence, he was arrested on 7 August 2012
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and was granted bail 2 days later. However, he jumped bail for
that offence on 22 May 2013 when he had to attend a pre-trial
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review in the Court of First Instance of the High Court. After
his arrest for the present case, he was remanded in custody for
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both offences. He will now stand trial for that other offence
on 16 June 2014.
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Drug addiction treatment centre suitability report
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14. According to the defendant’s own reporting, he started
abusing ice in 2008 under the influence of his dubious peers.
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Prior to his remand, he abused ice about once or twice a week,
and he last took ice in November 2013. He has not received
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either voluntary or compulsory drug addiction treatment before.
Since the defendant is not a drug dependant now, he is
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considered not suitable for admission into a drug addiction
treatment centre.
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Mitigation
R 15. Learned counsel for the defendant submitted that Charges 1 R
to 3 should be dealt with together since they all related to the
S drug addiction of the defendant. Upon instruction, counsel S
stated that the defendant consumed ice at the average rate of
T once or twice a week, but he would consume more for up to once T
every two days if he needed to work overnight so as to keep him
U awaken. Counsel submitted that in light of the small quantity U
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A of ice involved, there was little risk that the drug would fall A
into the hands of other people. As for the prohibited weapon,
B counsel submitted that the weapon in question would not cause B
serious injuries and that there was no evidence that the
C defendant would use it for any unlawful purpose. Counsel C
stressed that the defendant pleaded guilty to all charges and
D asked for a sentence as lenient as possible for the defendant. D
E Reasons for sentence E
16. It is quite clear that a custodial sentence has to be
F imposed in the present case. First, for the offences in Charges F
1 and 2, the total quantity of ice was 4.81 grammes. While this
G
quantity was not substantial, it was not small either. Second, G
for the offences in Charges 3 and 4, while Charge 3 was
connected with his drug addiction, the offence in Charge 4 was
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of a completely different nature which was serious in itself.
Third, all these offences were committed by him after the
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defendant had jumped bail for another serious offence. Fourth,
although the defendant had served sentences in prison before,
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they had no effect in deterring him from committing further
offences. Fifth, he is due to stand trial for another serious
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offence in the Court of First Instance, and he is now being
remanded in custody pending trial. With these factors in mind,
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it is simply not appropriate to impose a sentence such as
probation, community service order or fine because such a
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sentence will not adequately reflect the gravity of the offences,
and it will in any event be impracticable to impose probation or
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community service order on him because he is now in custody for
another matter.
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17. As to the form of custodial sentence, since the defendant
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is not suitable for admission into a drug addiction treatment
centre, the only viable sentencing option is imprisonment.
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18. As far as the quantum of the prison terms is concerned,
R Charges 1 and 2 shall be dealt with together since they are both R
for the offences of possession of a dangerous drugs, and the
S defendant possessed them at the same time though some were found S
on his person and some were found in his living place.
T T
19. According to the Court of Appeal in the case of HKSAR v Mok
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A Cho Tik 4 , the appropriate starting point for possession of a A
dangerous drug was between 12 and 18 months’ imprisonment.
B B
20. In light of the nature and quantity of ice involved but
C also the fact that the defendant did not have any criminal C
conviction relating to a dangerous drug since 1987, I find the
D appropriate starting point for each of Charges 1 and 2 to be 13 D
months’ imprisonment.
E E
21. As to whether the starting point should be increased on the
F ground that there was a latent risk that the drugs would be F
disseminated to others, the Court of Appeal made it clear that
G
it was the actual risk of dissemination that the sentencing G
judge should consider: HKSAR v Chan Tai Wah5.
H H
22. In the present case, when the defendant was questioned by
the police, he explained why he carried the drug in the street
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and why he had the re-sealable plastic bags. There is nothing
in the evidence to show that his explanation must be untrue, and
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I have to give him benefit of the doubt. I note that he had
given various accounts about the rate of his drug consumption,
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firstly to the police in his video recorded interview, secondly,
to the in-take officer who prepared the DATC report, and lastly
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to his learned counsel. Again, I give him benefit of the doubt
and shall sentence him on the basis that what he has told his
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counsel is true. In light of the defendant’s consumption rate
and the quantity of ice involved, I accept counsel’s submission
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that the actual risk of dissemination minimal. Accordingly, I
shall not adjust the starting point upward on the latent risk
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ground.
P P
23. The defendant however committed these offences after he had
jumped bail for another drug offence. This was an aggravating
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factor that must be taken into account: HKSAR v Yuen Gang Shing 6;
HKSAR v Woo Chung Hing 7. To reflect this aggravating feature, I
R adjust the starting point upward by two months to 15 months’ R
imprisonment for each of Charges 1 and 2.
S S
4
[2001] 1 HKC 261.
T T
5
CACC476/2011.
6
CACC303/1997.
U 7
CACC19/2002. U
6
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A 24. As far as Charge 3 is concerned, the defendant possessed A
the two inhaling devices for consumption of ice in his living
B place. The appropriate starting point is 4½ months: The Queen v B
Law Sing 8 . Since the defendant committed this offence after he
C had jumped bail for his other offence, I adjust the starting C
point upward to 5 months’ imprisonment.
D D
25. As far as Charge 4 is concerned, it had been said that
E possession of prohibited weapon such as an extendable baton was E
a serious offence, and that the greater the potential that the
F weapon would get into the public arena the more serious the F
offence would be: HKSAR v Lee Chun Kit 9 . In the present case,
G
there is no evidence that the defendant would carry the G
extendable baton with him in a public place. Nor was there
evidence that he would use it for an unlawful purpose. Under
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these circumstances, I adopt one month imprisonment as the
starting point, and adjust it upward to 1½ months on the ground
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that the offence was committed by him after he had jumped bail
for the other offence.
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26. I have already considered the mitigation advanced on behalf
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of the defendant. I find that the only mitigating factor is the
defendant’s guilty plea, for which he will be given one-third
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discount of the sentences. There is no other valid reason for
reducing the sentence.
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For these reasons, the defendant is sentenced as follows:
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Charge 1 10 months’ imprisonment
Charge 2 10 months’ imprisonment
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Charge 3 Imprisonment for 3 months and 10 days.
Charge 4 One month’s imprisonment
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27. As to whether these sentences should run concurrently or
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consecutively, I bear in mind the principle of totality. I note
that while the overall sentence must not be too lengthy, it must
R also adequately reflect the overall criminality of the offences. R
S 28. It is quite clear that the sentences for Charges 1 and 2 S
should run concurrently. As far as the sentence for Charge 3 is
T T
8
HCMA890/1996.
U 9
[2004] 1 HKC 573. U
7
V V
A concerned, the offence was also drug-related, but it will not be A
right to order this sentence to run wholly concurrently with the
B sentences for Charges 1 and 2 because that will mean the B
defendant receives no punishment for this additional offence. I
C therefore order that one month of this sentence should run C
consecutively to the sentences for Charges 1 and 2.
D D
29. As far as the sentence for Charge 4 is concerned, this
E offence is of a completely different nature and is wholly E
separate from the other offences. I am of the view that a
F consecutive sentence should be imposed. I also consider that F
even if this sentence is to run wholly consecutively to the
G
other sentences, the overall term will not be excessive. For G
these reasons, I order that the sentence for Charge 4 should run
consecutively to the sentences for the other 3 charges.
H H
30. For these reasons, the defendant has to serve a total of 12
I I
months’ imprisonment.
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K K
W.K. Kwok
District Judge
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