HKSAR v. Pack Wing Hang

DCCC 1006/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1006 OF 2015

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to 2 charges of "Possession of a dangerous drug" (Charges 1 and 3) and a charge of "Possession of Part I Poison" (Charge 2).

Summary of Facts

2.About 7:30 p.m. on 13 September 2015, on the 2^nd Floor of Yi Chun Street Public Toilet & Bathhouse in Sai Kung, SPC 53549 (PW1) saw the defendant swaying, staggering and with confused eyes.  PW1 also found a bag ("the Bag") on a bench next to the defendant.  Only PW1 and the defendant were present at the premises at that time. 

3.Upon search, in the defendant's right trouser pocket, PW1 found a plastic medicine bag containing :-

(i) a transparent plastic bag which contained 8 tablets containing zopiclone (Charge 2);

(ii) a small transparent plastic bag which contained 0.42 gramme of a powder containing 0.37 gramme of ketamine (Charge 1); and

(iii) a $500 banknote folded into a packet which contained 0.01 gramme of a powder containing ketamine.

4.PW1 cautioned the defendant and asked him what those items were.  The defendant replied "Ah Sir, those are 'K chai'.  I use them for my self-consumption."

5.PW1 then searched the Bag and found a transparent bag containing 11 small plastic bags which contained a total of 13.40 grammes of a powder containing 8.84 grammes of ketamine (Charge 3).  Under caution, the defendant said "Ah Sir, those 'K chai' are for my self-consumption."

6.In his cautioned interview, the defendant explained in details why he went to the public toilet & bathhouse in Sai Kung and how he purchased the drugs found on him and in the Bag.  He claimed that he had taken 2 packets of ketamine at the public toilet & bathhouse and was thus under the influence of drugs when PW1 dealt with him.  The defendant said he did not know he had been arrested until arrival at the police station.

Mitigation & Sentence

7.The defendant is 42 and has 22 conviction records, which included 7 "simple possession" offences.  His most recent conviction record (dated November 2012) involved a total 16 offences (mainly related to violence and driving).  He was released from prison in early March 2015.  He committed the present offences just 6 months after being released.

8.Defence counsel Mr. YIP informed me that the defendant had a job as a canoe-rental worker in Sai Kung. The day of his arrest was a Sunday.  He finished work and his body was dirty, so he went to the public bathroom to take a shower.  He consumed some ketamine and zopiclone in the bathroom.

9.In mitigation, Mr. YIP submitted that the defendant was in gainful employment at the time of his arrest. He had the financial means to purchase the drugs found on him.  His last "simple possession" conviction took place 9 years ago and he has no conviction of any "trafficking" offences.  Hence, the latent risk is low.

10.According to the DATC Report, the defendant is no longer a drug dependant.  He has been remanded in jail custody for over 6 months, and the result is somewhat expected.  Although a DATC Order is not necessary, an immediate custodial sentence is inevitable in the present case.

11.For Charge 1, 0.37 gramme of ketamine (contained in 1 packet) was involved.  I adopt a starting point of 4.5 months' imprisonment.  With the guilty plea, the sentence is reduced to 3 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 3 months' imprisonment.

12.For Charge 2, 8 tablets of zopiclone were involved.  I adopt a starting point of 6 weeks' imprisonment.  With the guilty plea, the sentence is reduced to 4 weeks.  I sentence the defendant to 4 weeks' imprisonment.

13.For Charge 3, 8.84 grammes of ketamine (packaged in 11 plastic bags) were involved.  They were found in the Bag rather than on the defendant.  When determining the proper starting point, I have borne in mind the 3-step approach laid down in HKSAR v WAN Sheung Sum [2000] 1 HKLRD 405.  First, the defendant being a repeated offender of "simple possession", for the quantity and nature of the drug involved, I adopt a starting point of 15 months' imprisonment.  Second, the way in which the drug was packaged must be a latent risk factor.  In the absence of any other evidence suggesting "trafficking", I accept that the risk is relatively low.  I will add 3 months to reflect it.  In other words, the starting point shall be 18 months. With the guilty plea, I sentence the defendant to 12 months' imprisonment.

14.The defendant possessed the substances involved in all 3 charges at the same time. Hence, I order the sentences in Charges 1 to 3 to run concurrently.  The total prison term for all 3 charges shall be 12 months.