HKSAR v. Wong Yat Chin and Another

DCCC 534/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 534 OF 2013

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Reasons for Sentence for D2

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1.Defendant, you have pleaded guilty to a charge of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance.

2.You admitted that on 16 January 2013 at the Charming Garden Multi-storey Car Park in Mong Kok at about 3.03 am you had in your possession drugs, ketamine, to the quantity of 2.78 grammes of a solid containing 2.31 grammes of ketamine. 

3.At the material time you were stopped, you and D1, your ex-boyfriend, were stopped by police officers and when you were about to be searched by an officer, you threw the drugs away. 

4.It is admitted in the admitted facts that the drugs which were in your possession was for the consumption of both yourself and D1, your boyfriend. 

5.Prior to sentencing you, I called for a drug addiction treatment centre report.

6.Your counsel Mr Chase Pun has mitigated fully and thoroughly on your behalf. 

7.You are 29 years of age and have four previous convictions. You have one similar for possession of dangerous drugs in 2008, to which you were sentenced to probation for 18 months.  However, in the midst of that probation, you breached the probation order because you relapsed into taking drugs and that probation order was extended to 24 months. 

8.You are married but separated from your husband.  You have a daughter from him and another daughter from the 1st defendant.  Since 2010 you have been unemployed and relying on Comprehensive Social Security Assistance.  You are living with your mother. 

9.Mr Pun has urged this court to impose a short custodial sentence.  He referred me to two cases, that of HKSAR v Mo Cho Tik, [2001] 1 HKC 261, where the Court of Appeal held there that a starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months.  However, the term is not a straitjacket particularly where the quantity of drugs are of a small amount.  The court held that the quantity will be the main governing factor which will determine where this starting point will lie.

10.What Mr Pun failed to read here is at page 267, line D, “If an offender is a persistent offender, he can expect the starting point to be higher than it otherwise would be.”  

11.Mr Pun has also referred me to another case, HKSAR v Chong Tsz Ho Billy HCMA814/2008.  He has submitted these cases are similar on its facts.  In that case the defendant was sentenced to a term of approximately 15 weeks’ imprisonment.

12.That case can be distinguished from this case in that the quantity of drugs was far lower than the present case.  The quantity there was 0.30 grammes of ketamine.  That appellant was of a clear record.  He was only aged 20.  He had no previous convictions and no similar convictions.  Similar to the present case however he too was considered not to be drug dependent.

13.You are, as observed by the medical officer, no longer a drug dependent.  You therefore are considered not suitable for admission to the Drug Addiction Treatment Centre.  A detention order has never been made in respect of you to DATC.

14.I have to say I was surprised to see that you are no longer drug dependent.  You have been toying with drugs for a number of years.  Your first conviction for possession of dangerous drugs was in 2008.  You were unable to resist taking drugs during your probation period and thus you breached your probation order.  As a result you were sent to the Society for the Aid and Rehabilitation of Drug Abusers, (SARDA), in January 2009.  Upon your discharge, in February 2010, you remained drug-free.  However, you relapsed into taking ketamine and cocaine in early 2010.  Then you began to sniff ketamine once biweekly until 10 January 2013 just prior to the date of this offence. 

15.You were not allowed bail after being arrested for this offence.  However, three months later, on 27 March 2013, you were released on bail.  In the DATC report it says you have remained drug-free whilst in the bail period.

16.Two weeks ago, on 16 October, I called for a drug addiction treatment centre report.  As I mentioned, the report says that you are no longer drug-dependent as whilst you have been on bail, you have remained drug-free. 

17.I am pleased to hear you have remained drug-free.  I hope you will continue to remain drug-free.  I am told that you have your two young children to look after and this may well be an incentive.  This is however your second similar offence for possession of dangerous drugs. 

18.The appropriate sentence in my view, as is not challenged by your counsel, a period of imprisonment.  The only question is the length of the term of imprisonment. 

19.Defendant, the drugs that you were found in possession of were to be divided or used between yourself and D1.  That would mean equally, the amount would have been about 1.15 grammes each.  In following the guidelines set out in Mo Cho Tik I do consider that I can impose a lesser term than the usual term of 12 months’ imprisonment given the quantity involved. 

20.Defendant, had I convicted you after trial, I would have taken a starting point of 6 months’ imprisonment.  Giving you full credit for your plea of guilty, I reduce that term to one of 4 months’ imprisonment to which you are so sentenced.