A A
B B
DCCC 375/2018
C [2018] HKDC 1533 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 375 OF 2018
F F
G ------------------------------ G
HKSAR
H H
v
I LEUNG HING YIP I
------------------------------
J J
K Before: HH Judge Sham K
Date: 12 December 2018
L L
Present: Mr John McNamara, Counsel on fiat, for HKSAR
M Mr Lee Pak Chau instructed by Messrs. Yuen & Partners M
assigned by the Director of Legal Aid for the defendant.
N N
Offence: [1] Possession of goods to which Dutiable Commodities
O Ordinance applied (管有《應課稅品條例》適用的貨品) O
P
[2] Possession of dangerous drugs (管有危險藥物) P
Q Q
---------------------------------------
R REASONS FOR SENTENCE R
---------------------------------------
S S
T 1. Customs officers stopped and searched the defendant in the T
streets in Cheung Sha Wan leading first to the discovery of illicit cigarettes
U U
V V
-2-
A A
B B
and later drugs at his home in Tsing Yi.
C C
2. The defendant, a 42-year-old man, pleaded guilty before me
D D
to one count of possession of dutiable goods (Charge 1), i.e. 600 cigarettes,
E and one count of possession of drugs (Charge 2), namely, 2.55 grammes of E
herbal cannabis, 7.29 grammes of a solid containing 6.66 grammes of
F F
cocaine and 7.48 grammes of a solid containing 6.38 grammes of ketamine.
G G
3. In the morning of 10 January 2018 at about 10 o’clock, the
H defendant walked along Castle Peak Road in Cheung Sha Wan with a H
rucksack bulging with angular objects, which aroused the suspicion of a
I I
team of plainclothes customs officers who happened to be patrolling in the
J vicinity. J
K K
4. The officers stopped the defendant for questioning and in the
L rucksack, they found 600 illicit cigarettes– the subject matter of charge 1. L
The packets of cigarettes contain the printed words “HKDNP” which
M M
stands for “Hong Kong Duties Not Paid”.
N N
5. Later in the day, the defendant was taken back to his home, a
O O
public housing unit in Cheung Hon Estate, for a search and customs
P officers found in his bedroom the drugs in this case which were put in four P
separate plastic bags – 2 bags of cocaine, one bag of cannabis and one bag
Q Q
of ketamine, and also a hand-rolled cigarette containing cannabis.
R R
6. He claimed that those drugs were for his personal use and he
S bought it from a man for $2,000 in a park in Sham Shui Po. In the S
subsequent interview, he further told the officers that he worked as a
T T
transportation worker earning $8,000 a month and the way he would
U U
V V
-3-
A A
B B
normally consume the drugs in question – he would snort ketamine but
C smoke the other two kinds of drugs. C
D 7. The street value of the seized drugs is estimated to be $650, D
$7,700, $4,100 respectively for cannabis, cocaine and ketamine. The total
E E
value is slightly over $12,000.
F F
8. The defendant has only one minor conviction in the past – in
G G
2001 he was fined $1,000 for buying dutiable goods.
H H
9. Counsel for the defendant has given the court a very detailed
I account of the defendant- his family, jobs, finances, drug habit etc. In short, I
he lives with his two brothers both of whom need his care because one of
J J
them is slightly retarded while the other is having various health problems.
K K
10. The father passed away when the defendant was very small.
L L
The mother and the defendant, however, are very close, counsel said, but
M unfortunately, she suffered a stroke in 2013 which left her paralysed. She M
had to move out of the public housing unit to live in a nursing home for
N N
special care, which cost the defendant an extra few thousands a month
O despite government’s subsidies. O
P P
11. Consequently, with his meagre income, the defendant soon
Q found himself in desperate financial straits, life without doubt was hard Q
then, but things have got better since September 2018 as the care of his
R R
mother was fully paid for by the government, counsel said.
S S
12. The defendant had lost his causal delivery job for 9 months
T from March to October 2017, counsel said. Counsel went on to say that the T
loss of his job plus the need to look after his brother’s and mother’s welfare
U U
V V
-4-
A A
B B
caused a great deal of anxiety and stress which led him to stupidly turn to
C drugs to try and alleviate the stressful situation he had found himself in. C
D 13. An almost clean criminal record notwithstanding, it’s D
submitted that the defendant had been a long-time drug abuser at least up
E E
to November 2017 – counsel said that the defendant started abusing various
F drugs like cannabis, cocaine as well as ketamine at the age of 24 but ceased F
using ketamine about 10 years ago when it had taken its toll of his health.
G G
H
14. The use of cocaine together with the ketamine only started H
in March 2017, counsel said, when the defendant found himself in a
I I
difficult-to-cope situation - the unemployment, the welfare of his two
J brothers and the health and care of his dear and beloved mother. J
K 15. Counsel further submitted (and I quote) that since finding K
employment in November 2017, the defendant has ceased using drugs and
L L
has been drug free. This is confirmed by his urine test during remand at the
M Lai Chi Kok on 11 January 2018 and all the other urine tests undertaken M
with the Hong Kong Youth and Children services from May to November
N N
2018 – they all showed a negative result.
O O
16. Worrying that any form of custodial sentence would have a
P P
harmful effect on the welfare of his brothers and mother, counsel was
Q trying hard to persuade the court not to call for a DATC report and to deal Q
with it there and then by way of non-custodial or suspended sentence
R R
(which is allowable under the provision of section 54A(4) of the Dangerous
S drugs Ordinance). S
T T
U U
V V
-5-
A A
B B
17. Given the relatively large quantity of drugs the defendant
C admitted to possession, the court adjourned the matter to enable a DATC C
report to be prepared on the defendant.
D D
18. Now the report is before me, which does not recommend
E E
admission to the Centre because the defendant, in the opinion of the officer,
F is not a drug dependent. F
G G
19. Today in his letter to the court, the defendant expressed
H
remorse for what he had done and promised that he would stay away not H
only from drugs but would quit his smoking habit too. The rest of the
I I
content is basically a repeat of what his counsel had said in mitigation on
J the last occasion. J
K 20. In Mok Cho Tik CACC 165/2000, the Appellate Court said K
this:
L L
“……We remain of the view that the starting point for
M M
mere possession of a quantity of dangerous drugs
which a bona fide user would normally have in his
N N
possession should be in the range of 12 to 18 months,
…… Obviously the quantity will be the main
O governing factor which will determine where the O
starting point will lie. If an offender is a persistent
P offender he can expect the starting point to be higher P
than it otherwise would be. The existence of the risk
Q factor and a degree of risk is not a matter of Q
mathematics upon which this court should provide a
tariff. Amongst the obvious factors to be taken into
R R
account are whether the offender is in employment;
whether the drugs are kept in a place to which others
S have access; whether offender has conviction for S
trafficking; and of course the quantity of drugs. The full
T circumstances of the risk must be assessed.” T
U U
V V
-6-
A A
B B
21. Turning back to the instant case, given the amount of drugs
C the defendant found to have possessed which is certainly not of a small C
quantity for a case of mere possession, I take 15 months as the starting
D D
point.
E E
22. Coming to the issue of the risk factor - given the scenario as
F F
described by the defence counsel in mitigation, the risk of some of those
G drugs finding its way to others, in my view, can’t be overestimated. G
H 23. Counsel said in mitigation that ever since becoming gainfully H
employed again in November 2017, the defendant has led a drug-free life
I I
and cited the negative result of the urine test taken while the defendant was
J in custody for the present offences in support of his drug-free assertion. J
K K
24. I have no reasons to doubt what was put forward by his
L counsel; what he in effect was saying is the defendant was no longer relying L
on drugs at the time of the offence. But in actual fact he had had in his
M M
possession a large quantity of more than one kind of drugs of which he
N supposedly had no further use, isn’t it all the more reason to believe that at N
least part of the drugs would be used by others and not by him?
O O
25. As I said before I found the latent risk to be very high in this
P P
case; for that matter, I would add 12 months on top to take the starting point
Q to 27 months. His plea is timely because he originally charged with Q
trafficking but pleaded guilty to the lesser charge of possession which the
R R
prosecution accepted, so he is entitled to the full one-third discount. The
S starting point is reduced to 18 months. S
T T
U U
V V
-7-
A A
B B
26. There being nothing else to justify a further reduction in
C sentence, for the offence of possession, the defendant is sentenced to 18 C
months’ imprisonment.
D D
27. As far as the illicit cigarettes are concerned, though this is his
E E
second offence, a fine is still appropriate - perhaps a heavier one. He is
F fined $2,000 (To be taken from the defendant’s bail money). F
G G
H H
( Sham )
I District Judge 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
V V
A A
B B
DCCC 375/2018
C [2018] HKDC 1533 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 375 OF 2018
F F
G ------------------------------ G
HKSAR
H H
v
I LEUNG HING YIP I
------------------------------
J J
K Before: HH Judge Sham K
Date: 12 December 2018
L L
Present: Mr John McNamara, Counsel on fiat, for HKSAR
M Mr Lee Pak Chau instructed by Messrs. Yuen & Partners M
assigned by the Director of Legal Aid for the defendant.
N N
Offence: [1] Possession of goods to which Dutiable Commodities
O Ordinance applied (管有《應課稅品條例》適用的貨品) O
P
[2] Possession of dangerous drugs (管有危險藥物) P
Q Q
---------------------------------------
R REASONS FOR SENTENCE R
---------------------------------------
S S
T 1. Customs officers stopped and searched the defendant in the T
streets in Cheung Sha Wan leading first to the discovery of illicit cigarettes
U U
V V
-2-
A A
B B
and later drugs at his home in Tsing Yi.
C C
2. The defendant, a 42-year-old man, pleaded guilty before me
D D
to one count of possession of dutiable goods (Charge 1), i.e. 600 cigarettes,
E and one count of possession of drugs (Charge 2), namely, 2.55 grammes of E
herbal cannabis, 7.29 grammes of a solid containing 6.66 grammes of
F F
cocaine and 7.48 grammes of a solid containing 6.38 grammes of ketamine.
G G
3. In the morning of 10 January 2018 at about 10 o’clock, the
H defendant walked along Castle Peak Road in Cheung Sha Wan with a H
rucksack bulging with angular objects, which aroused the suspicion of a
I I
team of plainclothes customs officers who happened to be patrolling in the
J vicinity. J
K K
4. The officers stopped the defendant for questioning and in the
L rucksack, they found 600 illicit cigarettes– the subject matter of charge 1. L
The packets of cigarettes contain the printed words “HKDNP” which
M M
stands for “Hong Kong Duties Not Paid”.
N N
5. Later in the day, the defendant was taken back to his home, a
O O
public housing unit in Cheung Hon Estate, for a search and customs
P officers found in his bedroom the drugs in this case which were put in four P
separate plastic bags – 2 bags of cocaine, one bag of cannabis and one bag
Q Q
of ketamine, and also a hand-rolled cigarette containing cannabis.
R R
6. He claimed that those drugs were for his personal use and he
S bought it from a man for $2,000 in a park in Sham Shui Po. In the S
subsequent interview, he further told the officers that he worked as a
T T
transportation worker earning $8,000 a month and the way he would
U U
V V
-3-
A A
B B
normally consume the drugs in question – he would snort ketamine but
C smoke the other two kinds of drugs. C
D 7. The street value of the seized drugs is estimated to be $650, D
$7,700, $4,100 respectively for cannabis, cocaine and ketamine. The total
E E
value is slightly over $12,000.
F F
8. The defendant has only one minor conviction in the past – in
G G
2001 he was fined $1,000 for buying dutiable goods.
H H
9. Counsel for the defendant has given the court a very detailed
I account of the defendant- his family, jobs, finances, drug habit etc. In short, I
he lives with his two brothers both of whom need his care because one of
J J
them is slightly retarded while the other is having various health problems.
K K
10. The father passed away when the defendant was very small.
L L
The mother and the defendant, however, are very close, counsel said, but
M unfortunately, she suffered a stroke in 2013 which left her paralysed. She M
had to move out of the public housing unit to live in a nursing home for
N N
special care, which cost the defendant an extra few thousands a month
O despite government’s subsidies. O
P P
11. Consequently, with his meagre income, the defendant soon
Q found himself in desperate financial straits, life without doubt was hard Q
then, but things have got better since September 2018 as the care of his
R R
mother was fully paid for by the government, counsel said.
S S
12. The defendant had lost his causal delivery job for 9 months
T from March to October 2017, counsel said. Counsel went on to say that the T
loss of his job plus the need to look after his brother’s and mother’s welfare
U U
V V
-4-
A A
B B
caused a great deal of anxiety and stress which led him to stupidly turn to
C drugs to try and alleviate the stressful situation he had found himself in. C
D 13. An almost clean criminal record notwithstanding, it’s D
submitted that the defendant had been a long-time drug abuser at least up
E E
to November 2017 – counsel said that the defendant started abusing various
F drugs like cannabis, cocaine as well as ketamine at the age of 24 but ceased F
using ketamine about 10 years ago when it had taken its toll of his health.
G G
H
14. The use of cocaine together with the ketamine only started H
in March 2017, counsel said, when the defendant found himself in a
I I
difficult-to-cope situation - the unemployment, the welfare of his two
J brothers and the health and care of his dear and beloved mother. J
K 15. Counsel further submitted (and I quote) that since finding K
employment in November 2017, the defendant has ceased using drugs and
L L
has been drug free. This is confirmed by his urine test during remand at the
M Lai Chi Kok on 11 January 2018 and all the other urine tests undertaken M
with the Hong Kong Youth and Children services from May to November
N N
2018 – they all showed a negative result.
O O
16. Worrying that any form of custodial sentence would have a
P P
harmful effect on the welfare of his brothers and mother, counsel was
Q trying hard to persuade the court not to call for a DATC report and to deal Q
with it there and then by way of non-custodial or suspended sentence
R R
(which is allowable under the provision of section 54A(4) of the Dangerous
S drugs Ordinance). S
T T
U U
V V
-5-
A A
B B
17. Given the relatively large quantity of drugs the defendant
C admitted to possession, the court adjourned the matter to enable a DATC C
report to be prepared on the defendant.
D D
18. Now the report is before me, which does not recommend
E E
admission to the Centre because the defendant, in the opinion of the officer,
F is not a drug dependent. F
G G
19. Today in his letter to the court, the defendant expressed
H
remorse for what he had done and promised that he would stay away not H
only from drugs but would quit his smoking habit too. The rest of the
I I
content is basically a repeat of what his counsel had said in mitigation on
J the last occasion. J
K 20. In Mok Cho Tik CACC 165/2000, the Appellate Court said K
this:
L L
“……We remain of the view that the starting point for
M M
mere possession of a quantity of dangerous drugs
which a bona fide user would normally have in his
N N
possession should be in the range of 12 to 18 months,
…… Obviously the quantity will be the main
O governing factor which will determine where the O
starting point will lie. If an offender is a persistent
P offender he can expect the starting point to be higher P
than it otherwise would be. The existence of the risk
Q factor and a degree of risk is not a matter of Q
mathematics upon which this court should provide a
tariff. Amongst the obvious factors to be taken into
R R
account are whether the offender is in employment;
whether the drugs are kept in a place to which others
S have access; whether offender has conviction for S
trafficking; and of course the quantity of drugs. The full
T circumstances of the risk must be assessed.” T
U U
V V
-6-
A A
B B
21. Turning back to the instant case, given the amount of drugs
C the defendant found to have possessed which is certainly not of a small C
quantity for a case of mere possession, I take 15 months as the starting
D D
point.
E E
22. Coming to the issue of the risk factor - given the scenario as
F F
described by the defence counsel in mitigation, the risk of some of those
G drugs finding its way to others, in my view, can’t be overestimated. G
H 23. Counsel said in mitigation that ever since becoming gainfully H
employed again in November 2017, the defendant has led a drug-free life
I I
and cited the negative result of the urine test taken while the defendant was
J in custody for the present offences in support of his drug-free assertion. J
K K
24. I have no reasons to doubt what was put forward by his
L counsel; what he in effect was saying is the defendant was no longer relying L
on drugs at the time of the offence. But in actual fact he had had in his
M M
possession a large quantity of more than one kind of drugs of which he
N supposedly had no further use, isn’t it all the more reason to believe that at N
least part of the drugs would be used by others and not by him?
O O
25. As I said before I found the latent risk to be very high in this
P P
case; for that matter, I would add 12 months on top to take the starting point
Q to 27 months. His plea is timely because he originally charged with Q
trafficking but pleaded guilty to the lesser charge of possession which the
R R
prosecution accepted, so he is entitled to the full one-third discount. The
S starting point is reduced to 18 months. S
T T
U U
V V
-7-
A A
B B
26. There being nothing else to justify a further reduction in
C sentence, for the offence of possession, the defendant is sentenced to 18 C
months’ imprisonment.
D D
27. As far as the illicit cigarettes are concerned, though this is his
E E
second offence, a fine is still appropriate - perhaps a heavier one. He is
F fined $2,000 (To be taken from the defendant’s bail money). F
G G
H H
( Sham )
I District Judge 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
V V