HKSAR v. Man Kam Keung, Tommy and Another

DCCC 2/2022

[2022] HKDC 1387

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 2 OF 2022

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REASONS FOR SENTENCE

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Background of the case

1.The background of this case had already been stated in the Reason for Sentence for the 2^nd Defendant (“D2”)  dated 11 November 2022 and no repetition is needed. In summary, at around 9:45 pm on 7 May 2021, the 1^st defendant (“D1”)  was stopped by the police when he was purchasing 0.57 gramme of a solid containing 0.51 gramme of cocaine (“Exhibit 1”)  wrapped in a piece of tissue paper.

2.Under caution, D1 admitted he had a habit of consuming cocaine. He paid $1,000 for the purchase of Exhibit 1.

3.D1 is charged for 1 count of possession of a dangerous drug contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance. He pleads guilty to the charge and admits the summary of facts. He is convicted.

Mitigation of D1

4.D1 is now 37 years old. He is a married man. His wife is a housewife. He has 3 children and the eldest son is mentally and physically disabled and needs to sit in a wheelchair and attend special needs school.

5.Upon finished high school education in UK, D1 started working as a bar-tender and later helped out in the vegetable stall owned by his parents until 2019 when the stall closed down. He is now unemployed and relies upon social assistance for living.

6.D1 has been known to the mental health service since 2010 and is diagnosed to have paranoid schizophrenia. He has received regular follow-up and medications. He started abuse dangerous drugs in 2009. Although he managed to keep clean for a period of time, he kept using cocaine for stress-coping whenever he is distressed. He ceased abusing dangerous drugs since May 2021.

7.He has 1 previous criminal record in 2010 but not similar to the present offence. At the material time, he bought Exhibit 1 for self-consumption. He is now deeply remorseful. He wrote a mitigation letter to express his determination to turn a new leaf. His wife and friend also wrote mitigation letters begging for a lenient sentence.

Sentence of D1

8.D1 pleads guilty at the earliest opportunity. He has only 1 conviction record, which is not dangerous drugs related. However, I find that D1 had consumed dangerous drugs for a long time. His sentence was adjourned to 11 November 2022 pending a DATC report and a Probation Officer’s Report.

9.D1 was not recommended for admission into the DATC because he was not a drug addict anymore. He was not recommended for probation because he breached probation order in the past and showed no interest towards his drug problem. Still, counsel for D1 asked me to further adjourn the sentence of D1 pending a Further Probation Officer’s Report. I agreed.

10.Today, according to the Further Probation Officer’s Report, D1 is recommended for a probation order for a period of 12 months, with 7 special conditions aiming at assuring D1 to follow the direction of the probation officer and to abstain from all kind of dangerous drugs.

11.Cocaine is a hard drug and a fine is not appropriate. Usually, a short custodial sentence will be imposed for possession of a small quantity of dangerous drugs if a defendant, who is not a repeated offender, is not suitable for admission to DATC, nor under the supervision of a probation officer.

12.Having considered the contents of those reports, I agree that a 12 months’ probation order is the most appropriate sentence in this case.

Sentence

13.For Charge 1, D1 is sentenced to probation order for a period of 12 months, with the 7 special conditions stated in the Further Probation Officer’s Report.