DCCC805/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 805 OF 2010

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Reasons for Sentence

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1.  The defendant pleaded guilty to two counts of possession of dangerous drugs and one count of possession of apparatus fit and intended for the inhalation of a dangerous drug.

2.  For the purposes of sentencing, the facts perhaps are not so important here. It is rather the quantity that matters most, in my view. The drug involved in this case consists of two types of dangerous drugs; cocaine and “Ice”. The quantity of cocaine found in this case is 0.59 grammes, whereas the quantity of “Ice” is 10.26 grammes.

3.  The defendant is a 42-year-old divorced man.

4.  If his most recent conviction is to be taken into account, he has been brought before court and convicted of various offences on nine previous occasions. The majority of those convictions are drug-related.

5.  The defendant has been sentenced to DATC three times before. The most recent detention order was made in July this year, in relation to a case of simple possession of a dangerous drug in Shatin Magistracy. Therefore, at the moment, the defendant is still undergoing treatment at the DATC in respect of that conviction.

6.  Prior to this latest detention order, the defendant was last sentenced to a DATC in 2007, but very unfortunately, the defendant did not seem to benefit from that detention order, and he relapsed and committed the present offences and the offence for which he was sentenced to DATC in Shatin Court as well.

7.  It is obvious that the defendant is a drug dependent, and he has been a drug dependent for some considerable time.

8.  Mr McGuinniety, counsel for the defendant, in his mitigations, says the defendant, in fact, is not as bad as his record suggests. Clearly, he has a long drug problem and that is the reason, perhaps a major reason, why he has been in trouble with the law in the past, but the defendant is not a person without passion.

9.  Mr McGuinniety submits and he has evidence to prove that, the defendant has been making contribution to World Vision, and for the last four years, the total amount of contribution made by the defendant well exceeded $11,000.

10.  Mr McGuinniety says not only this is not common for a drug dependent, it is not common for a person with long criminal history. Perhaps that can be seen as an indication that the defendant is not irredeemable.

11.  Mr McGuinniety further says that the defendant, in fact, has been struggling very hard in the past years to rid himself of the drug habit. Unfortunately, his determination to quit the habit did not seem to be enough.

12.  Now that the defendant is at the DATC undergoing treatment, the defendant seems to be doing well, and therefore, Mr McGuinniety urges this court to consider another DATC order, because this is the most beneficial sentence, both to the defendant and the society as well.

13.  I have carefully considered submissions made by

Mr McGuinniety on the defendant’s behalf.

14.  I have carefully considered what the DATC report says about the defendant.

15.  I am aware that the drug involved in this case is not of insignificant amount. Taking the quantity of “Ice” alone, the quantity involved is some 10.29 grammes, which is quite substantial for simple possession offence.

16.  If the defendant is charged with trafficking in a dangerous drug involving this quantity of “Ice”, he is looking at a substantial period of imprisonment. However, he was not charged with trafficking.

17.  I do not know exactly how the prosecution come to a decision to charge this defendant with simple possession only, but on all the available information, one can easily come to a reasonable conclusion that, perhaps, the defendant’s previous record, plus the fact that he was found with various apparatus for inhalation of dangerous drugs, supports the view that he is a drug abuser, rather than a drug trafficker.

18.  There is more evidence to support the same view. If one looks at the defendant’s record, not only that he has never been found guilty of any trafficking offences, there is no indication whatsoever that the defendant has been involved in any kind of illegal activities in order to fund his drug addiction. This is significant, because if there was such indication, perhaps this court would not be inclined to consider any other sentencing option other than imprisonment.

19.  What it boils down to is this: the defendant is a drug abuser, and that is it.

20.  The defendant is now undergoing treatment at the DATC. The DATC report suggests that he is doing well there, and therefore, the chances of his being able to quit drug addiction are there.

21.  In my view, if the defendant is able to stay drug-free, not only that the defendant may benefit from it, the society as a whole may also benefit. If the defendant is able to resist the temptation of drug abuse, he will not be charged with any drug offence again. If he is able to stay drug-free, then there is no more need for him to buy dangerous drugs from other drug pushers. This will benefit the society.

22.  I am aware that the period of detention at the DATC varies from 2 to 12 months. It is within the sole discretion of the Commissioner of Correctional Services to decide when is the best time to discharge an inmate from the DATC.

23.  The defendant has been at the DATC since July this year. Therefore, he has, in effect, spent about three months at the DATC up to this moment.

24.  According to section 6A of the Drug Addiction Treatment Centre Ordinance, Cap.244, if a fresh detention order is made in respect of a person who is already undergoing a period of treatment at the DATC, the first detention order shall cease to have effect.

25.  What it means is that if I make a new detention order in respect of the defendant, the existing detention order shall cease to take effect immediately, and the defendant, under the new order, may well have to face up to 12 months’ detention or treatment at the DATC.

26.  This, in my view, may be able to remove concern that if a new detention order is made in respect of this defendant, this defendant may only have to serve the remainder of the first order, which could be significantly shorter than he would have got under the new order.

27.  Having concluded that the defendant is a drug abuser, and that the defendant stands a good chance of rehabilitation at the DATC, and after taking into account all the relevant circumstances, I am prepared to say that the present case, perhaps, comes within the scope of a very special case. I accept what Mr McGuinniety has submitted to me, that this court can deal with this case on a case-by-case basis.

28.  The result is this:

29.  In respect of the three offences of which the defendant is convicted, I order that the defendant be sentenced to DATC.

30.  In order to eliminate any chances of doubt or ambiguity, I make it clear that these sentences are to run concurrently with one another.