HKSAR v. Hau Pak Kwan

DCCC 975/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 975 OF 2015

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Reasons for Sentence

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1.The defendant, Mr Hau, has been convicted of the offence of possession of a dangerous drug in relation to 21.7 grammes of heroin hydrochloride. The original charge was one of trafficking, and Mr Hau entered a plea of guilty to possession of the drug when the charge was first put to him. After trial, that plea was confirmed by the court, in fact, by way of a conviction for the offence of possession of a dangerous drug in relation to these drugs.

2.The facts of the case were very simple.  The defendant was stopped and searched, and the drug was found on him in a white brick-like fragment, as it is described.  A home search of the defendant found no further incriminating evidence, certainly in relation to the charge of trafficking, and very little supporting evidence in respect of the defendant’s consumption of the drug.  The defendant attributes that to the fact that his consumption apparatus had been removed by his girlfriend, and that seems the most probable explanation that the court has had in relation to that.

3.The defendant accepts that he is a long-term consumer of this drug and says the drug would have been for his own consumption, given the rate of consumption that he gave in evidence.

4.I must sentence the defendant on the basis of the plea and on the conviction that I entered.

5.As far as the defendant’s background is concerned, I obtained a drug addiction treatment centre report, as I am required to do after a conviction under section 8.  The report is quite helpful.  The defendant is now aged 32.  He was well educated at a Chinese International School called King George V School.  He has been employed in various jobs such as bartender and restaurant waiter, translator, and he was working in a furniture-manufacturing company at the time of his arrest and conviction.

6.His criminal record shows he has a total of 25 previous convictions.  13 of them are drug related; the first conviction in 2003, with his last recorded conviction being on 16 November 2015.

7.The defendant, when arrested, said he was addicted to heroin, and that appears in his police antecedents statement.

8.As far as the defendant’s convictions for drug offences are concerned, they all relate to possession of the drug or possession of apparatus for its consumption.  As far as his addiction history is concerned, he started by smoking cannabis in 2003 and then abused heroin by means of “chasing the dragon” and then injection later on.  He has abused midazolam on top of his heroin from 2008.  Prior to his present incarceration he was taking heroin and midazolam almost daily, spending $400 on each time, and the last time he reportedly took those drugs was in July 2015.

9.He has been sentenced to drug addiction treatment centre on seven previous occasions between 2004 and 2011.  He has joined a voluntary residential drug treatment programme in 2007 and has been a methadone user at the Violet Peel Methadone Clinic in Wan Chai.

10.The conclusion of the report is quite clear. The defendant became wayward after finding undesirable friends in his late teens and had been drawn into what seems a typical pattern of drug consumption and addiction.

11.He has been through all the forms of sentencing in relation to drug addiction one has in Hong Kong, such as being placed on probation, being sent to a drug addiction treatment centre, and also sentenced to imprisonment.

12.Nothing, it would appear, so far has worked to help the defendant with his addiction, which perhaps in his case could be classified as an illness.

13.However, the most recent conclusion is the defendant is no longer drug dependent.  That is because of his lengthy incarceration since July of last year.  So he is unsuitable for admission for further drug addiction treatment centre.

14.That being the case, the approach to sentencing in this defendant’s case must be as follows.  The only realistic sentence for this defendant in relation to possession of a dangerous drug is a sentence of imprisonment.  That is the only real alternative that I have left.  I must determine what starting point for sentence that should be, then I must determine, having regard to the quantity of drug, whether there should be any enhancement of that sentence for the latent risk of his possession of that drug.  Once that total has been ascertained, I must then give the defendant the benefit of his plea, which will be a one-third discount from that figure.

15.Sentencing for possession of a dangerous drug such as heroin, a hard drug such as heroin, for a long-term consumer for whom other forms of sentencing have been ineffective, will be in the range of 12 to 18 months’ imprisonment.

16.This defendant has little to be said for him as far as his addiction history is concerned.  Previous sentencing has not succeeded.  I consider that I should take the starting point for sentence in relation to his possession of a dangerous drug at the upper end of that figure, which is one of 18 months’ imprisonment.

17.There is now the element that I must also consider of latent risk of possession of such a quantity of drugs that the defendant may be tempted at some point to socially traffic; that is, to share it with friends.  The quantity is sufficient for that to be a risk.  The assessment of that is always somewhat subjective.

18.What I will do is enhance the sentence by a further 9 months’ imprisonment to reflect that element.

19.The defendant is entitled to a one-third discount from that figure, and that leads to a final sentence for this offence of one of 18 months’ imprisonment, and that is the sentence I will impose:  one of 18 months’ imprisonment.