HKSAR v. Lou Wan Man, Carol

DCCC 274/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 274 OF 2015

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Reasons for Sentence

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1.I will approach it in this way. The defendant has been convicted of possession of 4.73 grammes of methamphetamine hydrochloride, commonly as “Ice”, and 5.77 grammes of herbal cannabis. The defendant was originally charged with trafficking in those quantities of drugs but convicted of possession of the drug. The defendant has indicated her acceptance of possession of drug from the outset of the investigation. She maintained that position at trial. She is therefore entitled to be treated as if she had entered a plea of guilty to this charge at the outset of trial.

2.The facts of the case are simple.  The drug was found in the bedroom of a flat of which the defendant was a tenant.  At the time, there were other people in the flat with her.  Now, the drugs were found in a plastic box together with a large number of plastic bags and two electric scales.  There was no indication in the evidence that the bags or scales had been used to measure a drug dosage, but the storing of the drugs together with these items led to a clear potential for their use to do so.  The defendant accepted those facts, did not challenge the facts of the possession and finding of the drug.

3.As far as the defendant’s antecedents are concerned, she is currently aged 39 years.  She has a son aged 14.  She has a total of 18 previous court appearances with eight previous offences of possession of a dangerous drug.  They indicate that she has had drug abstinence treatment, that is drug addiction treatment centre treatment, on four previous occasions.  She has been recalled on two further occasions.  Her record of convictions shows also convictions for offences of dishonesty, and it is usually the case that such offences are committed to sustain one’s life and to also provide for the means to continue one’s addiction to drugs.  It would be, I think, easy to assume and probably correct to assume that all the defendant’s criminality is in some way related to her drug addiction.  The reports also indicate the defendant has been in receipt of CSSA for a number of years. 

4.As a result of the conviction on the offence of possession of drug, I called for a drug addiction treatment centre report.  It is a detailed report and is quite helpful in respect of the defendant.  What it essentially says is she was brought up in what is described as a working-class family.  She dropped out of school and had an unstable employment pattern.  She started to abuse heroin in 1994 and then committed a series of drug offences.  She has been placed on probation, she has been sentenced to a drug addiction treatment centre, and she has been sentenced to prison, all for the possession of dangerous drugs.  She became a consumer of “Ice” in 2003, midazolam in 2004 together with heroin.  She is said to have been indulged in what they describe as a vicious circle of drugs and crime, resulting in the commission of this offence, and she reported that she kept on taking drugs right up until her remand in prison for this offence.

5.The drug addiction treatment centre sees no point in her continuing any form of treatment at that institution.  It is therefore a sad and unfortunate position the defendant finds herself in.  She is in the grip of a serious addiction and seems to have no way out of this other than an exercise of willpower.  Whilst all the time she has a commitment in her son who is aged 14 years old and presumably misses the society of a mother who would be capable of caring for him, defendant expresses a desire to free herself from drugs.  She no doubt has done that on a number of occasions.

6.The only option that appears to be left to the court in the situation I have is one of imposing a sentence of imprisonment. 

7.Turning to the case of the appropriate sentence for her, the conviction here is for possession of a dangerous drug.  There is no clear tariff for the sentence in those circumstances. 

8.In the case of Mok Cho Tik, that is CACC 165/2001, it was said for mere possession of a quantity of dangerous drug which a bona fide user would use, the sentence should be in the range of 12 to 18 months’ imprisonment.  That was in fact a case involving the drug “Ice” but in larger quantities than in this case.  That applies to the possession of quantity of “Ice” which is 4 grammes-odd.  There is also possession of over 5 grammes of herbal cannabis.

9.I do not consider that the cannabis this will substantially alter the calculation as the penalty for possession of such a quantity could be in the region of a fine.  Considering the nature and quantity of the drug and the fact that the defendant is a long-term addict and has a number of previous convictions, she is clearly a recidivist in the drug area. I consider the appropriate starting point for the mere possession of the drug should be one of 18 months’ imprisonment.  

10.In addition to this, I also have to consider the latent risk of the distribution of the drug.  Although the quantity of drug cannot be said to be large, the presence of the bags and electric scales clearly indicate the risk of distribution of the drug.  I find that the presence of these items would mean that there would be a high risk that at least some part of the drugs would be distributed to others.  I would assess that that risk would lead to an enhancement of the starting point for sentence by a further 6 months’ imprisonment.  

11.Thus, for those reasons, I will take a starting point for sentence in respect of these drugs at 24 months’ imprisonment.  The defendant is entitled to a one-third discount from that figure which leads to a figure of 16 months’ imprisonment for this offence.