HKSAR v. Fan Chi Ho

DCCC 808/2018

[2020] HKDC 576

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 808 OF 2018

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REASONS FOR SENTENCE

1.The defendant stood trial on two charges of trafficking in cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1] (charges 1 & 2). At the commencement of the trial in respect of charge 1 the defendant pleaded guilty to possession, contrary to section 8 of the Dangerous Drugs Ordinance.

2.The defendant was found not guilty of both charges of trafficking in dangerous drugs and in respect of charge 1 was convicted on his own plea to possession, contrary to section 8 of the Dangerous Drugs Ordinance.

3.Full particulars of the offence are set out in my reasons for verdict handed down on 2 July 2020.

4.In summary at about 00:14 hours on 23 June 2018 plain clothes police officers were conducting an anti-narcotics operation in Yuk Yat Street in Hung Hom when they intercepted the defendant outside the ground floor of Bayview, No. 9 Yuk Yat Street.

5.PC 16851 carried out a body search and found inside the right back pocket of the defendant’s trousers a piece of paper which was wrapping a transparent re-sealable plastic bag inside which was 11.9 grammes of a solid containing 11.0 grammes of cocaine.

6.I rejected the defendant’s evidence that all the cocaine was for his own consumption and that he was intercepted by the police just after he had taken delivery of the cocaine. 

7.Having carefully considered all the evidence I was not however satisfied that quantity alone provided a clear indication of trafficking.  I found that the prosecution failed to prove beyond reasonable doubt that the defendant was dealing in or with the cocaine, or possessing the cocaine for the purpose of trafficking. 

8.The benefit of the doubt was given to the defendant and he was acquitted of trafficking and convicted on his own plea to possession of 11.9 grammes of a solid containing 11.0 grammes of cocaine, contrary to section 8 of the Dangerous Drugs Ordinance.

Mitigation

9.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Boyton, including that since March the defendant has been working as a salesman selling dogs.

Drug Addiction Treatment Centre report

10.By virtue of section 54A of the Dangerous Drugs Ordinance no sentence of imprisonment may be imposed for the offence of possession of a dangerous drug without first considering the suitability for cure and rehabilitation.

11.The report details the defendant’s background and addiction history.   The defendant claimed that he smoked cannabis a few times in 2002 and first started smoking cocaine in late 2008.  The defendant alleged he took cocaine once per week and that his last dosage of the drug was in late June 2020[2].

12.I note this is different to what the defendant said in evidence that at the date of arrest (June 2018) he had been smoking cocaine for around a year and that he smoked cocaine every day[3]. 

13.The defendant has never been sentenced to a Drug Addiction Treatment Centre or joined any voluntary drug treatment or attended methadone treatment. 

14.The Assessment Officer states that the defendant appeared to be cooperative in revealing his drug addiction history but lacked the determination to abstain himself from taking drug and mainly negotiated a lenient sentencing option.  The defendant expressed his unwillingness to be sentenced to a Drug Addiction Treatment Centre which shed doubt on his readiness and determination to quit drugs.

15.The Medical Officer is of the opinion that the defendant is a drug dependent. 

16.The Assessment Officer is of the opinion that in view of the defendant’s weak willpower and taking into account his rehabilitative needs, a period of compulsory drug addiction treatment coupled with intensive statutory supervision would be beneficial to him.  The defendant is therefore considered suitable for admission to a Drug Addiction Treatment Centre and a place is available for him. 

Sentence

17.Taking into account all the circumstances, including that the defendant has never received any drug treatment in the past, I am satisfied a period of treatment in a Drug Addiction Treatment Centre would be beneficial to the defendant’s rehabilitation and in the interests of the community.  The defendant is sentenced to detention in a Drug Addiction Treatment Centre. Conviction is recorded.