HKSAR v. Ho Ka Kei

CACC 378/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 378 OF 2009

(ON APPEAL FROM DCCC NO. 447 OF 2009)

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Before: Hon Stock VP, Yeung JA and Hartmann JA in Court

Date of Hearing: 27 July 2010

Date of Judgment: 27 July 2010

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JUDGMENT

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Hon Stock VP (giving the judgment of the Court):

1.On 7 July 2010 we allowed an appeal by this appellant against a conviction for trafficking in dangerous drugs and we substituted therefore a conviction for possession of dangerous drugs contrary to section 8 of the Dangerous Drugs Ordinance, Cap 134.

2.Pursuant to the requirement of s 54A of that Ordinance we directed the preparation of a report on the appellant’s suitability for rehabilitation and remanded him in custody for that purpose.

3.We now have the benefit of that report.  It states that whilst the appellant has allegedly taken ketamine in the past, he is not a drug dependent and not considered suitable for admission to a drug addiction treatment centre.  It is obvious therefore that it is inappropriate for us to commit him to such a centre for treatment.

4.He has been in custody since October 2009.

5.We note that this was quite a substantial quantity of drugs, and it carries with it a clear latent risk factor.  We would accord 18 months’ imprisonment as a suitable starting point for this quantity, namely, 20.42 grammes of ketamine, and add to that 6 months to reflect the latent risk; an overall starting point, in other words, of 24 months’ imprisonment.

6.We are informed that this appellant pleaded guilty to possession of these drugs for which reason we give him credit for that plea, and reach a sentence of 16 months’ imprisonment.

7.Accordingly, we set aside the term of 4 years and 2 months’ imprisonment imposed on 16 October 2009 and substitute therefor a term of 16 months’ imprisonment for the offence of possession of the drug.

Ms Polly Wan, SPP of the Department of Justice, for the Respondent

Mr Cheung Kam Wing, Adonis, instructed by Messrs C.T. Chan & Co., assigned by DLA, for the Appellant