COURT: The defendant pleaded guilty before me and as a result was convicted of one count of possession of a dangerous drug.
In sentencing, I have considered the whole circumstances of the case, including its nature and facts in particular the type and quantity of the dangerous drug involved, personal background of the defendant and mitigation put forward on his behalf.
The facts of the case are simple. When police officers conducted a search of the defendant who was sitting at a hotel lobby, in his briefcase two plastic bags containing 0.11 grammes of a solid containing ‘Ice’ and traces of a solid containing ‘Ice’, and an apparatus with two straws inserted containing 0.02 grammes of a solid containing ‘Ice’ were found.
I was told that the defendant is now 43 years of age. He is married and has a son now aged 18. Both his wife and his son are in gainful employment. The defendant was born in the mainland and received education there up to Primary 5. He came to Hong Kong in 2003 and has been working as a manual labourer. At the time of his arrest, he was working as a decoration worker.
The defendant did not have a clear record. He had been convicted on four occasions for five offences. The first conviction was for possession of dangerous drug which took place in 2016. He was first put on probation but as he breached the order he was sent to DATC. The other offences he committed were not related to dangerous drug.
The narcotic content of the drug in the possession of the defendant in this case was minimal. In any case, in usual circumstances of this nature of cases, it would have been appropriate to ask for a DATC report before deciding on the appropriate sentence.
Learned counsel for the defence, Ms Lee, asked the court to take into account the special circumstances in this case. The defendant has been in custody for more than 2 years and 4 months since his arrest. His length of custody exceeds the proper length of sentence if the court finds immediate imprisonment term is appropriate for this case. Besides having been in custody for so long, experience tells that the defendant will unlikely be found still be drug-dependent and therefore DATC will unlikely be recommended.
Taking into account the facts of the case and that this is not the first time the defendant has committed the same offence, a sentence of custodial nature would have been appropriate. As said, the defendant has been in custody for a duration longer than the appropriate length of sentence. The court may impose an immediate term of a length which entitles the defendant to an immediate release.
But if such course is adopted, section 54A(1) of the Dangerous Drugs Ordinance requires first asking for a DATC report which appears to be pragmatically unnecessary since it is unlikely the defendant will still be found drug-dependent and it may be unfair to the defendant as it means further detention. In the circumstances, I consider it just and sufficient to consider a non-custodial sentence permissible under section 54A(4).
Having consider the special circumstances of the case, I find a suspended sentence pragmatic and fit for the situation. It reflects relatively more accurately the culpability of the defendant than a fine.
In my assessment, the latent risk in this case is low. I am of the view that a starting point of 8 weeks is appropriate. The defendant only indicated that he would plead guilty after the case had been fixed for trial. I am prepared to give him a 25 per cent discount. The length of the imprisonment term is therefore 6 weeks. For the reason I have mentioned, I will order the sentence to be suspended for 1 year.
So defendant, I sentence you to an imprisonment term of 6 weeks, to be suspended for 1 year.