HKSAR v. Lam Chiu Yin

DCCC 634/2017

[2018] HKDC 443

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 634 OF 2017

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REASONS FOR SENTENCE

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1.The defendant was convicted after trial for possession of dangerous drugs, contrary to section 8(1)(a) of the Dangerous Drugs Ordinance, Cap 134.

The facts

2.On 28 April 2017 police entered the defendant’s residence with search warrant after intercepted the defendant outside the premises. 

3.During the house search, a paper box was found on top of a plastic cabinet inside the storage room of the premises.  Certain items were seized from the said paper box, among which were:-

(a) 6 plastic bags containing a total of 36.6 grammes of white crystalline solids containing 16.6 grammes of ketamine;

(b) 1 plastic bag containing 12.1 grammes of a powder containing 2.47 grammes of ketamine;

(c) 1 plastic bag containing 1 plastic bag containing 2.78 grammes of cannabis, in herbal form; and

(d) 1 plastic bag containing 1 hand-rolled cigarette containing 0.19 grammes of cannabis, in herbal form;

4.The total market value of the ketamine and cannabis seized is estimated to be HK$11,342.

5.Under caution, the defendant stated that the dangerous drugs seized were ketamine and cannabis for his self-consumption, his wife knew nothing about it.

Background/Mitigation

6.The defendant aged 45 married with 2 young children. He has a clear record and worked as a waiter at a restaurant which he has a share.  He is the sole breadwinner of his young family and earns about $20,000 per month.  The village head passed positive comment on him.  He is not a drug dependant.

7.The defendant agrees the content of the DATC report.  The defendant reiterated in the report that he had never taken any dangerous drugs and the drugs found did not belong to him.  The medical officer is also of the opinion that the defendant is not a drug dependant.  Thus a DATC order is not recommended.

8.Mr Khosa submitted that the usual starting point of 12 to 18 months was for possession of hard drug like heroin and ICE.  Should the defendant be charged for possession in the first place, this case would be heard in magistrates’ court.  Mr Khosa urged this court to adopt a lower starting point for Ketamine found in the present case and referred me to HKSAR v Ching Kim Ho HCMA 29/2015. 

9.Further, as the defendant has a clear record, with stable employment and positive comment from the village head, Mr Khosa urged this court to place more weight on rehabilitation in considering the sentence.  As to lack of addiction history, Mr Khosa submitted that it could be that the defendant was arrested upon his first attempt and urged this court not to speculate over this.  And with his good background the defendant would not commit further offence again.

Sentence

10.The maximum sentence for possession of dangerous drugs on conviction upon indictment is a fine of $1,000,000 and imprisonment for 7 years.

11.The defendant was found in possession of a total of 19.07 grammes of ketamine and 2.97 grammes of cannabis in herbal form.  The defendant claimed the dangerous drugs were for his own consumption under caution.  However, the defendant is not a drug dependant.  This is a large quantity a new bona fide user might have in his possession.  I consider the quantity in the present case warrant a starting point of 15 months’ imprisonment.      

12.Further, in view of the defendant’s lack of addiction history, I consider there is a high latent risk in the present case that most of the dangerous drugs in his possession would be distributed to others.  For this high latent risk, I increase the starting point by 6 months.

13.The defendant denied possession, he was found and convicted of possession of the dangerous drugs after trial.  The defendant has a good background, for this I reduce his sentence by 3 months.  I do not consider there to be any mitigating factor that calls for further deduction. The defendant is sentenced to 18 months’ imprisonment accordingly.

Order

14.The defendant is sentenced to 18 months’ imprisonment.