HKSAR v. Chan Man Ho

DCCC1067/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1067 OF 2009

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of trafficking in a dangerous drug. In sentencing I have taken into consideration the whole circumstances of the case, including its nature and facts, in particular the nature and quantity of the dangerous drug involved, background of the defendant, mitigation made on behalf of him, a letter written by a church leader on his behalf, and have had regard to sentencing precedents.

2.The facts of the case are simple. The defendant was stopped and searched. A piece of tissue paper wrapping a packet of dangerous drug was found in his left front trousers pocket.

3.Under caution he admitted delivering the ketamine on behalf of a friend to an unknown man for a reward of $100 upon successful delivery. The dangerous drug involved was 12.03 grammes of powder containing 10.24 grammes of ketamine.

4.Before arraignment the defence raised the issue of fitness to plead. The matter was adjourned for obtaining of two psychiatric reports on the matter. Both psychiatrists are of the opinion that the defendant is fit to plead. Today the defence no longer pursue the matter and ask for plea to be taken.

5.The defendant is 25 years of age. He is single and was living with his father. He quitted school after having finished form 3 education. Then he had worked as an air-conditioner technician for about 3 years. In February 2009 he became a cook. He was unemployed at the time of the offence and was supported financially by Social Welfare. He is a first time offender.

6.I am told that the defendant was spoiled by the family since he is the only son of the family. The relationship with the mother was very close. When she began to suffer from cancer about 3½ years ago, the defendant became very worried and spent much time with her in the hospital. As a result he lost his job. The circumstances led him into taking of drug, which eventually affected his mental health. His mother passed away in 2007.

7.Whilst both psychiatrists opined that the defendant is fit to plead, they also confirmed that the defendant has a history of ketamine abuse with drug-induced psychosis. The defendant informed the doctor that his mental state deteriorated from April 2009; he heard a non-existent voice commanding him to die as well as making derogatory comments about him. He also felt others wanted to harm him and his friends try to boycott him.

8.On 3 June this year, the defendant was admitted to Eastern Hospital for one week and was diagnosed with Stimulants Dependence Syndrome and Drug Induced Psychosis. Dr Robyn Ho said that the psychotic symptoms rapidly improved following his admission and he continued to attend follow-up after discharge. She also reported that the mental state of the defendant remained stable but at times he heard a “wee wee” noise. She said that the psychotic symptoms of the defendant appeared to have largely subsided at the time of the offence. The defendant also does not suffer any active psychiatric problems at present. Dr Henry Yuen also opined that most of the psychotic features of the defendant have subsided and he did not appear to be overtly psychotic at the time of the offence.

9.There is no dispute that the defendant has been a drug abuser. I am told that the defendant committed the present offence for a small reward from his friend. Under caution the defendant said it was only $100 and he did it for a friend. I accept that.

10.According to the guideline in SJ v HII Siew Cheng [2009] 1 HKLRD1, the tariff for a conviction after trial of trafficking in 10 to 50 grammes of ketamine is 4 to 6 years imprisonment. In all the circumstances I do not consider there exist strong reasons not to follow the tariff suggested in that case. Ketamine has been shown to be a prevalent drug in Hong Kong. The harm to individuals and the community as a whole is tremendous.

11.I note the defendant is a habitual abuser of the drug and has no previous conviction of any kind. Having regard to the remarks in HII Siew Cheng I am of the view that an immediate custodial sentence is warranted and a starting point of 4 years is appropriate.

12.The defendant pleaded guilty. I am satisfied that he is remorseful. He is entitled to a one-third discount. In all the circumstances I consider that this is the extent of discount he is entitled to. Although the defendant is addicted to drugs, it is not appropriate to consider a sentence of DATC in view of the seriousness of the offence. Besides, there are suitable and abundant facilities in the CSD institutions for the defendant to get rid of the vice habit.

13.Based on the matter aforesaid, I sentence the defendant to 32 months imprisonment. I hope that the defendant, having served his sentence, will turn over a new leaf.

14.In view of the opinion of the psychiatrists I will add the recommendation for the attention of CSD that the defendant is to continue to receive psychiatric treatment when he is serving his sentence.