HKSAR v. Chan Pui Keung and Another

DCCC 1027/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1027 OF 2015

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REASONS FOR SENTENCE – D1 only

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INTRODUCTION

1.The first defendant in these proceedings was, on 3 June 2016, arraigned on a total of four charges. The first and second charges were offences of possession of a dangerous drug, laid against him (and a co-accused, who was no longer before the court) pursuant to section 8(1)(a) and (2) of the Dangerous drugs Ordinance, Cap 134. The third charge was one of possession of apparatus fit and intended for the smoking of a dangerous drug, a charge that was preferred against the first defendant (and the co-accused), contrary to section 36(1) and (2) of the same Ordinance.  The fourth and final charge, which was brought against the first defendant alone, was a charge of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221. 

2.To the four charges the first defendant entered a plea of guilty and upon his agreement to the Summary of Facts supplied by the prosecution in support of the four offences, he was found guilty as charged.

FACTS

3.On the evening of 11 June 2015, a security guard saw the first defendant attempting to prize open the door of Room 1001, 10^th floor, Chak Sing House, Tin Chak Estate, Tin Shui Wai, New Territories.  The first defendant explained, when asked, that the unit was his uncle’s, and that he prized the door because he had forgotten to bring the key to enter the unit.  The security guard asked him to stop, but the first defendant refused to do so.  The security guard’s supervisor attended the scene shortly and asked the first defendant to produce his proof of identity and to stop prizing the door of the unit.  The first defendant produced his Hong Kong Identity Card but continued prizing the door.  The supervisor reported the matter to the police, and the first defendant fled via the staircase.   

4.A police officer arrived at Chak Sing House to conduct an investigation into the matter with the security guard on the ground floor, in the course of which the security guard saw the first defendant and pointed him out.  The police officer proceeded to arrest the first defendant.

5.At about that time, another team of police officers saw the second defendant on 10^th floor of Chak Sing House.  She was intercepted for enquiry and in her possession was found a Marlboro cigarette box containing a folded white paper packet containing what was later determined to be 0.15 gramme of a powder containing 0.1 gramme of ketamine; a lighter; and a yellow straw.  Under caution, the second defendant denied ownership of the cigarette box; for his part, on the other hand, the first defendant said in a post-arrest, video-recorded interview that the drugs found in the cigarette box were his.  (Charge 1)   

6.The two defendants were escorted to Parking Lot 153 on 3^rd floor of Tin Chak Car Park, Tin Chak Estate.  In the defendants’ presence, the police conducted a search on the first defendant’s private car RP786, in which the police found (i) three plastic bags containing 12.7 grammes of a powder containing 7.34 grammes of ketamine and 2.45 grammes of a crystalline solid containing 2.41 grammes of methamphetamine hydrochloride and one plastic bag containing 0.32 gramme of a powder containing 0.2 gramme of ketamine (Charge 2), and (ii) a glass bottle with two inlets (Charge 3).  Under caution on the spot and in a subsequent video-recorded interview, the first defendant admitted that the dangerous drugs and the apparatus for inhaling dangerous drugs belonged to him. (Charges 2 and 3)    

7.The first defendant’s trial before this court was scheduled for 21 April 2016.  On 22 April 2016, he failed to appear at court to answer the first three charges, thereby breaching his bail condition.  A warrant for his arrest was issued.  On 1 May 2016, the police executed the warrant and arrested him.  He was cautioned for the offence of failing to surrender to custody.  Under caution, he alleged that on 21 April 2016, having informed his lawyer that he was not feeling well, he left the court and went to Tuen Mun Hospital; he was assaulted by four men outside the Accident and Emergency Department of the hospital, however; so he left the hospital without receiving any medical attention; on 22 April 2016, he turned up in court, informed his lawyer that he was unwell, and went to seek medical treatment, but  he went home instead.  In addition, he told the police that he was not suffering from any long-term illness and had no need to seek regular medical treatment. (Charge 4) 

MITIGATION

8.The first defendant was born in Hong Kong in November 1974 and is now 41 years old[1].  He has received education up to Form One level and has worked as a lorry driver.  He has nine criminal records involving 27 offences, four of which are for drugs-related offences.  He has, in the past, been sent to a drug addiction treatment centre. 

9.In his plea in mitigation, Mr Bruce Lam appearing for the first defendant informs the court that the first defendant has been a casual lorry driver for IKEA, working ten-odd days a month, and that his monthly income was about $5,000 to $6,000. Mr Lam confirms the first defendant’s willingness to undergo a course of treatment at a drug addiction treatment centre. The root of the first defendant’s somewhat bizzard behavior, says Mr Lam, firstly in reference to the circumstances of the alleged burglary attempt and secondly in his failing to comply with his bail conditions was his addiction to dangerous drugs. Mr Lam urges the court to adopt the recommendation of the DATC report.

10.According to the Drug Addiction Treatment Centre Suitability Report, the first defendant is the eldest of five siblings.  He is divorced and his two-year-old daughter has been placed in the care and custody of his ex-wife.  Since leaving school, he has worked as a kitchen hand, decoration worker, and truck driver, but has never been in steady employment.  He has been a heroin-abuser, he says, between 1990 and 1995.  (His criminal records show that he was convicted of an offence of manufacturing dangerous drugs for which he was sentenced on 17 February 1996 to a term of imprisonment of ten years.)  He says he has had a brush firstly with ketamine in 2002 and later with “ice” in 2014.  At the time of the subject offences, he indulged himself in daily drug-abuse, ketamine and “ice”.  He wishes to be sent to a drug addiction treatment centre.  The Rehabilitation Officer of the Correctional Services Department recommends a DATC order in this case.     

CONSIDERATION

11.With respect to the first and second charges, the amounts of narcotics concerned would call for an immediate custodial sentence, particularly having regard to the latent risk factor.  In the normal course of event, the third and fourth charges should also be dealt with by a prison term, albeit a short one.

12.The court notes, however, that the first defendant has been in custody since 1 May 2016.  Having regard to his long-standing problem of drug-abuse and to the probable, effective length of imprisonment if a prison term were to be imposed, it is the court’s view that in the interest of the community and in order to minimize the likelihood of re-offending, more emphasis should be placed on the aspect of rehabilitation in the first defendant’s case.  In all the circumstances of this case, a detention order committing the first defendant to a drug addiction treatment centre is the more appropriate form of punishment.

CONCLUSION

13.For each of the four offences of which he stands convicted, the first defendant is sentenced to detention at a drug addiction treatment centre, to be served concurrently one another.