HKSAR v. Kwan Hon Ming and Others

DCCC 1114/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1114 OF 2015

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Reasons for Sentence relating to D2 and D3

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1.D2 and D3 plead guilty to their respective charges of inhaling a dangerous drug.

2.In the evening on 26 August 2015, the police raided a flat in Mong Kok and found them inside the living room.  Some “Ice” and paraphernalia for smoking were found.  Under caution, D2 admitted smoking heroin with an aluminum foil in the flat.  Under caution, D3 admitted smoking “Ice” with an aluminum foil in the flat. 

3.D2 is 58 years of age.  Among other convictions, he has received sentences for 17 previous convictions between 1985 and 2007 for possession of a dangerous drug, and 3 previous convictions between 1986 and 2007 for smoking a dangerous drug.  D3 is 47 years of age.  Among other convictions, he has received sentences for 3 previous convictions between 1996 and 2009 for possession of a dangerous drug.  These reflect that, on the record, D2 and D3 have not been taking drugs for over 8 years and 6 years respectively until the present instance. 

4.Given the lapse of time from the last drug use to the present instance, I come to consider if there is room for passing a non-custodial sentence.  Mr. Chan, who acts for D3, has prepared a bundle succinctly outlining the sentences in 16 cases ranging from the District Court to the Court of Appeal.  The pattern clearly indicates that even for a defendant with a clear record, a non-custodial sentence is a rarity.  Miss Lau, who acts for D2, refers me to the case of HKSAR v Lee Hoi Cheong HCMA 67/2009 where the defendant was originally sentenced to 18 months’ imprisonment for trafficking by the magistrate.  On appeal the verdict was substituted by simple possession.  A fine was imposed expressly on account of his having served 4 months before appeal and no useful purpose to be served by any further incarceration.  This case does not detract from the said pattern gleaned from Mr. Chan’s bundle to the effect that, even for a defendant with a clear record, a non-custodial sentence is a rarity.

5.The decisive blow in the present instance is actually the disrecommending report from the DATC finding D2 and D3 each a drug-dependant.  Any argument for a non-custodial sentence for a drug-dependent must be a lost cause. 

6.I take 9 months as the starting point for each of them.  One-third off for the plea of guilty, the sentence is 6 months.