HKSAR v. Kumpun Saksith
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DCCC1087/2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1087 OF 2012 --------------------
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--------------------- Reasons for Sentence --------------------- 1.The defendant pleaded guilty to the two charges in the Re-Amended Charge Sheet. The 1st Charge was for the offence of possession of a dangerous drug[1]. The 2nd Charge was for the offence of failing to surrender to custody without reasonable cause[2]. Facts 2.About 9 p.m. on 20 August 2012, the Defendant was stopped and searched by the police. A transparent resealable plastic bag containing 13.57 grammes of a crystalline solid containing 13.53 grammes of methamphetamine hydrochloride was found under his left armpit. He was arrested for the offence of possession of dangerous drugs. Under caution, he stated that he purchased the drugs on the day in question for his own consumption. The estimated street value of the drugs was HK$10,231.80. This formed the subject matter of the 1st Charge. 3.On 22 January 2013, the Defendant pleaded not guilty to one charge of trafficking in dangerous drugs, which was the original charge in the Charge Sheet. His trial was set down to be heard on 5 April 2013. On that day, he attended the hearing in the morning. His case was stood down until 12 noon to enable prosecuting counsel and defence counsel to have discussion. However, the defendant did not appear when the hearing resumed. A warrant of arrest was issued against him. On 21 May 2013, the Defendant was located by the police in Sai Kung and was arrested. Under caution, the defendant explained that he was absent because he had to take care of his girlfriend who was suffering from mental illness. This formed the subject matter of the 2nd Charge. 4.In the course of these proceedings, an issue has been raised whether the drugs in question, commonly known as “ice”, contained the d-isomer or the l-isomer, with the former one being the more potent form of the drugs, and the type of drugs considered by the Court of Appeal when it laid down the tariff for trafficking in “ice”. After further testing of the drugs, the drugs in question were found to contain the d-isomer. Criminal record 5.From September 1985 onwards, the defendant had a total of 16 previous convictions involving 31 offences, most of them were offences of dishonesty. He has no previous conviction for dangerous drugs or bail offences. He was last sentenced in June 2008 for three charges of theft, for which he had to serve a total of 21 months’ imprisonment. He was discharged from prison on 14 July 2009. Personal and family background 6.The Defendant is now 38 years old. He was born in Thailand. His father died soon after he was born. His mother remarried to a Hong Kong resident. He came to Hong Kong in about 1980 for family reunion and is now a permanent resident of Hong Kong. His step-father had already passed away. His mother lives apart from him, and they have little contact. The defendant received education only up to Primary 5. Prior to his remand, he worked as a carpenter for a wood company, earning about $9,000 a month. He had also worked as a computer repairing worker and a delivery worker before. He now lives with his 40 years old girlfriend who is suffering from mental illness. Pre-sentencing report 7.According to the Drug Addiction Treatment Centre Report, the defendant started to abuse “ice” in mid-2000s. Prior to his remand, he abused “ice” once every day at a cost of about $250 on each occasion. Medical officer confirmed that the defendant was a drug dependent. He is found to be suitable for admission into a drug addiction treatment centre. Mitigation 8.According to Mr. Yeung, the learned Solicitor for the defendant, the defendant started taking drugs 6 to 7 years ago, initially for fun, but became addicted because he felt that the drugs gave him more energy to work. Prior to his remand, the defendant took drugs everyday and twice a day. Mr. Yeung stressed that the drugs in question were purely for the defendant’s own consumption, and the quantity in question would last him for about one month. Mr. Yeung said that the defendant used to buy only half a gramme to one gramme of “ice” each time, but for the 6 months prior to the offence, he purchased in quantity similar to the present one from his acquainted drug supplier so as to get the drugs at a cheaper price and to reduce the risk of arrest. In addition, the drug supplier was willing to receive instalment payments from him according to his pay days. Mr. Yeung submitted that the latent risk for the defendant to redistribute the drugs was minimal. He pointed out that there was no admission from the defendant that he would distribute the drugs to others, and that there was no evidence that his cohabitee was a drug abuser so that there was no risk of social trafficking. He pointed out that the defendant had never been convicted of any drug offence, and that he had pleaded guilty. He also submitted that this was the first time the defendant was convicted of a bail offence. He pleaded for a drug addiction treatment centre order to be made against the defendant. Reasons for sentence 9.The defendant was found in possession of 13.53 grammes of “ice”. While this was a large quantity of drugs, it was not so large that he could not have them for his own use, and the prosecution had amended the charge to one of simple possession. He must therefore be sentenced on the basis that he was merely in unlawful possession of the drugs rather than trafficking in the drugs. 10.There is no sentencing tariff for the offence of possession of dangerous drugs in the sense that this Court must impose a particular form of sentencing, say, imprisonment, unless exceptional circumstances exist. This Court is therefore at liberty to decide the most appropriate sentencing option according to the facts of this case and the characteristics of the defendant. 11.In my view, the choice of sentencing option must depend on the primary aim of the sentence to be achieved. If this Court considers that punishment and deterrence are the primary aims, a sentence of imprisonment will be imposed. On the other hand, if this Court considers that rehabilitation of the defendant should be the primary concern, rehabilitative measure should be considered. Of course, rehabilitative measure can be a sentence that permits the defendant to retain his liberty such as probation or community service order, or it can be a sentence that causes the defendant to lose his liberty like detention in a drug addiction treatment centre if a sentence in closed setting is conducive and beneficial to the rehabilitation of the defendant. 12.In the present case, I take into account the fact that this is the first conviction of the defendant for a drug offence, and that he has not committed any other type of criminal offence for 3 years after his last discharge from prison. The defendant has been on drugs for 6 to 7 years. He clearly has a drug addiction problem, but he has never received any treatment to help him quit the bad habit and to prevent him from relapsing into drug abuse. I note the quantity of the drugs in question. It was by no means small, but I am of the view that the latent risk of the drugs falling into the hand of another person should not per se be a factor of sufficient force to prevent this court from adopting the rehabilitative approach in sentencing which was the usual approach to be adopted for dealing with a person who was convicted of possession of drugs for the first time. 13.As to the form of rehabilitative sentence, there is no doubt that a sentence in open setting like probation will not be appropriate. The quantity of drugs is one factor. The other factor is that it is unlikely for the defendant to have a successful rehabilitation in open setting in light of his personal and family background. There is simply no suitable person in the community that could have guided him and supervised him to ensure that he would go back to the right track. 14.For these reasons, I am of the view that the most suitable form of sentencing is to detain the defendant in a drug addiction treatment centre. It is also hoped that the post-release supervision will also be conducive to the defendant’s complete rehabilitation. 15.In respect of the 1st Charge, the defendant is accordingly sentenced to be detained in a drug addiction treatment centre with conviction recorded. 16.In respect of the 2nd Charge, it is common for an immediate custodial sentence to be imposed. In the present case, the defendant had absconded for 45 days. In HKSAR v Wong Chi Hung [3], a starting point of 3 months imprisonment for having failed to comply with bail term to attend court and remained at large for about one month was upheld by the Court of Appeal. It means that, on a plea, a sentence of 2 months’ imprisonment would be appropriate. 17.In the present case, after the defendant had been arrested on 21 May 2013, he was remanded in custody until 8 July when he was given bail. He was of course detained again from 30 August 2013 until today for preparation of the pre-sentencing report. He has therefore been detained for about 2 months already. Since the pre-sentence detention period will not be counted in computation of the time served by the defendant in the drug addiction treatment centre, it means that the pre-sentence detention of about 2 months is already a kind of punishment for the defendant. Under these circumstances, I do not intend to impose a term of imprisonment on the defendant for the bail offence. I also wish that the defendant can start his rehabilitation in the drug addiction treatment centre forthwith. 18.For these reasons, in respect of the 2nd Charge, the defendant is also sentenced to be detained in a drug addiction treatment centre with conviction recorded. 19.While it is not necessary for me to state it explicitly, but for the avoidance of doubt, I make it clear that the two sentences are to run concurrently.
[1] Contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Chapter 134, Laws of Hong Kong. [2] Contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Chapter 221, Laws of Hong Kong. [3] CACC300/2000 |