HKSAR v. Lo Kai Wah

DCCC474/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.474 OF 2010

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Reasons for Sentence

1.The defendant faces one charge of trafficking in dangerous drugs, it is alleged that he on 13^th March 2010 at Customs Search Room, No.262 Customs Arrival Hall, Lowu Control Point, New Territories in Hong Kong, unlawfully trafficked in a dangerous drug, namely 12.92g of a powder containing 11.20g of Ketamine.

2.The defendant pleaded not guilty to trafficking but guilty to possession of the said drugs. The prosecution accepted the plea to the lesser charge and the defendant was found guilty of possession of dangerous drugs, contrary to s.8 of the Dangerous Drugs Ordinance, Cap.134.

Facts

3.The facts are simple and straightforward. The defendant was intercepted while returning to Hong Kong from mainland China at Customs. Upon body search the drugs were found on him. The defendant confessed that the drugs were “K chai” and asked for a chance because his daughter is still very young. At a later cautioned interview, the defendant further confessed that the drug was bought from an unknown person at a karaoke in Shenzhen for RMD800 and he brought the drugs back to Hong Kong for his own consumption.

Previous convictions

4.The defendant has 5 previous convictions. The last one was back in 1993 and there are none that related to drugs.

Mitigation

5.As required by law (s.54A, Cap.134), a Drug Addiction Treatment Centre report was called for prior to sentence. The medical officer is of the view that the defendant is a drug dependent and considers the defendant suitable for admission to a Drug Addiction Treatment Centre.

6.I was referred to the last paragraph at p.3 of the DATC report. It is the view of counsel Mr. Luk that a DATC order would be the most appropriate sentence in the circumstances.

Sentence

7.The usual starting point for possession of dangerous drugs is around 12-18 months’ imprisonment: HKSAR v Mok cho-tik [2001] 1 HKC 261. In our present case, I have to consider and then balance all the factors when deciding whether to sentence the defendant to a term of imprisonment or to a period of rehabilitation in a treatment centre.

8.On the one hand, the defendant was last convicted in 1993, some 17 years ago and when he was only around 17 years old. He had never been convicted of a drug related offence. On the other hand, the seized drugs is not of a small quantity, had he been convicted of trafficking in those drugs, he would have faced a sentence of around 32 months’ imprisonment after plea.

9.The quantity however is not such that there is a substantial risk of the drugs being redistributed into society. This is also supported by the fact that the defendant has no previous dangerous drugs related convictions.

10.Having considered the circumstances carefully, I think on this occasion the rehabilitation factor outweighs that of punishment slightly. I will order that a DATC order be imposed on the defendant for the present offence, with the conviction being recorded.