HKSAR v. Tsang Chiu Mo

DCCC 244/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 244 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to one amended charge of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

2.The facts are very straightforward.  The police had information about narcotics and proceeded to the defendant’s home address. At about 11 pm on 15 January this year, the police knocked on the defendant’s door and he answered.  The defendant’s home was then subject to a house search.  When the defendant himself was searched, the police found in a bag in his pocket 25 transparent resealable plastic bags containing ketamine. The government chemist confirmed that there was a total of 29.5 grammes of a powder containing 21.6 grammes of ketamine.  There were also three mobile phones found in the defendant’s home as well as $2,842.60 cash.

3.The defendant told the police under caution that he bought the drugs for his own consumption from someone called Ah B..  He further explained under caution that he had met Ah B two to three months prior.  He did not have Ah B’s contact details or know his full name, but Ah B had the defendant’s phone number.  Apparently, earlier on that day, 15 January, Ah B called the defendant and the defendant requested 1 ounce of ketamine.  The defendant was told the price was $1,800 and somebody would deliver the ketamine to him.  He told the police that it was delivered, the drugs.  He explained that it was cheaper to buy a larger quantity in one go.

4.The defendant has many previous convictions.  He has 23 previous convictions, of which two are possession-of-dangerous-drugs offences and one is a trafficking-dangerous-drug offence.  The defendant’s last conviction was in November 2012 where for possession of dangerous drugs he was sentenced to 15 months’ probation.  Not long after that sentence, in January 2013, he was sentenced to a drug addiction treatment centre for being in breach of his probation order. 

5.He was released from the drug addiction treatment centre in June 2013.  After his release, he was supposed to be subject to one-year statutory supervision.  It appears that during that one-year period, a recall order was issued but the Correctional Services were unable to locate the defendant.  The defendant was arrested again in connection to this offence on 15 January 2015.

6.On 19 January, he was recalled to drug addiction treatment centre and released in May.  However, because of this offence, he has been in custody ever since.  This is, I am sure, the reason the drug addiction treatment centre report I called for says the defendant is not a drug addict at the moment, therefore unsuitable for a drug addiction treatment centre order.  This report is very detailed.  I will not repeat the defendant’s background nor criminal record history nor his employment history.

7.The defendant is 37 years old, single, and I am told living with his younger brother.  He has tried many professions and his last employment was that of a driver.  His brother is here in court today to support him, and I have received a mitigation letter written by the defendant expressing his remorse and asking for leniency. 

8.I have heard mitigation put forward.  I have read the report, the drug addiction treatment centre report, and considered the quantity of the dangerous drugs involved.  I have also considered the certain latent risk that exists in this case; one where some of the drugs may get into the hands of other drug users especially when I consider the packaging of dangerous drugs was in 25 individual bags. 

9.The defendant’s best mitigation is his plea of guilty, but this is not the defendant’s first drug conviction.  Moreover, the quantity of ketamine is over 20 grammes.  Having read the drug addiction treatment centre report and considered those factors, a term of imprisonment is entirely appropriate.

10.I have considered the Court of Appeal case HKSAR v Mok Cho Tik CACC 165 of 2000 which reiterates its view that the starting point for mere possession of a quantity of dangerous drugs should be in the range of 12 to 18 months.  The Court of Appeal goes on to say obviously the quantity will be a main governing factor to determine the starting point, and if the defendant is a persistent offender, he can expect the starting point to be higher than it otherwise would be.

11.In this case, not only is the drugs involved over 20 grammes of ketamine, but the defendant is a repeat offender and this is his fourth drug-related conviction.  I take a starting point of 18 months’ imprisonment.  However, I will add to that starting point because I am of the view that a latent risk exists.  I have been referred to the Court of Final Appeal case HKSAR v Minnie (see FAC No. 2 of 2012) and find I am justified in increasing the starting point of 18 months by a further 9 months to reflect the latent risk.  Therefore, the starting point is one of 27 months.

12.Defendant, please stand up.  You have pleaded guilty and you are therefore entitled to a discount of one-third for that plea.  After that discount is applied, for this offence, you are sentenced to 18 months’ imprisonment.  You understand that sentence?

DEFENDANT: Understand.