HKSAR v. SONG CHANG THAI

DCCC1115/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1115 OF 2008

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Reasons for Sentence

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1.  The defendant has been convicted on his plea of one charge of simple possession of a dangerous drug, namely 54.78 grammes of a powder containing 43.93 grammes of ketamine on 2 September last year. 

2.  The facts could not be more straightforward.  On the night in question, a police officer who was conducting an anti-dangerous drugs operation inside a housing estate in Tsuen Wan spotted the defendant acting suspiciously.  He intercepted and searched him and found the drugs in question in two plastic bags in his trouser pocket. 

3.  Under caution, the defendant admitted the drugs were ketamine.  He said that he had bought them from an unknown male in Mong Kok for $3,600, for his own consumption. 

4.  The defendant is 23 years and approximately 8 months old.  He has a criminal record including two counts of trafficking in dangerous drugs on 5 March 2004, and in March 2007 he was convicted of simple possession of dangerous drugs.

5.  I accept that judging from the sentence imposed for the two counts of trafficking in 2004, namely 12 months’ imprisonment in total, that it was not a particularly serious contravention, and also those convictions are some five years old by now.

6.  In the DATC report the Commissioner for Correctional Services states that:

“The medical officer, having carefully observed and examined the defendant is of the opinion that he is no longer drug dependant and is not, therefore, considered suitable for admission to a drug addiction treatment centre.” 

That finding is hardly surprising bearing in mind that the defendant has been in custody for some five months since his bail was revoked in December last year.

7.  The background report cannot be described as favourable nor particularly encouraging.  The defendant has been given several opportunities to turn over a new leaf and to rehabilitate himself.  He has been on probation; in detention in a boys’ home; and he has been to a drug addiction treatment centre for the simple possession of dangerous drugs in March 2007. 

8.  On each occasion after the expiration of his probation order, his discharge from the boys’ home and also from the drug addiction treatment centre, he showed a lack of determination to reform himself.  He continued to mix with undesirable peers including peers with Triad background and he started to get involved with dangerous drugs and committed the various offences shown in his criminal record.

9.  It appears that he has been consuming ketamine and, very often, ketamine and cocaine together since about 2002 so he has been addicted for at least six years, it seems.  I accept what I have been informed this morning, that he was in fact employed at the time of his arrest; nevertheless, the background report makes it clear that he has spent long periods of his life just being idle and not working.

10.  The officer who compiled the report stated on page 4 that:

“In the course of the interview the defendant showed no sense of remorse for his misdeed and also he did not have a long term plan for his future rehabilitation.” 

11.  I have noted the letter the defendant has written to the court today, in which he states that he has had occasion to review his life, and he regrets his various misdeeds in the past.  He is remorseful that he committed the present offence and is determined to start afresh after he has served his sentence for this offence. 

12.  I accept that those sentiments are genuine and I am encouraged to see that he says he will try to improve himself while he is in prison, so that he can become a useful member of society again after he has served his sentence.

13.  The Court of Appeal has indicated that in sentencing for simple possession of dangerous drugs the three-step approach is the proper approach to adopt.  The first step being to adopt an appropriate starting point in all the circumstances of the case; the second step being to consider the question of whether there is any latent risk in this case that the drugs might be redistributed by the defendant and that some of the drugs might find their way into the hands of others and, if the court does consider there is such a risk, to assess the degree of the risk and enhance the starting point appropriately to reflect that risk and finally consider all the circumstances of mitigation which apply in the present case. 

14.  The appropriate starting point will depend largely on the quantity of narcotic which was being trafficked.  I note that this was a relatively large quantity of ketamine, the quantity of narcotic being 43.93 grammes of ketamine. 

15.  The defendant has stated that these drugs were for his own consumption and the Court of Appeal has made it clear that that claim must be addressed by the court in order to determine whether or not it is accepted as genuine.  I note that the drugs were packaged in only two packets when found upon the defendant; and that they were found on his person and not, as is quite often the case with ketamine, in a discothèque or similar establishment where young people hang out and can easily be seduced into buying and experimenting with drugs such as ketamine. 

16.  In assessing what is the appropriate starting point to adopt, I am accepting that the defendant intended a substantial quantity of these drugs to be for his own consumption.

17.  In all the circumstances I have adopted a starting point of 15 months’ imprisonment after trial.  In my view there was a definite latent risk in the present case that some of the drugs, or even a fair quantity of the drugs in question, might find their way into hands other than the defendants.  I have in mind, in particular, the large quantity, and also the fact that the defendant does have a previous conviction for trafficking in dangerous drugs in 2004.  I have also noted his previous conviction for possession of dangerous drugs in 2007, which is neutral on the question of latent risk. 

18.  I have also noted from the background report that there have been several times in his life when he has not made any attempt to find a job and has just idled his time away and, also, his signal failure to take advantage of the opportunities he has been given in the past to reform himself and a turn over a new leaf. 

19.  In all the circumstances, in my view, the latent risk was quite high and I enhance the starting point by a factor of 40 per cent, namely 6 months’ imprisonment; this results in an overall starting point of 21 months’ imprisonment. 

20.  For his plea of guilty and his cooperation with the authorities he is entitled to the full one-third discount which is normally afforded.  That discounts the overall starting point to 14 months’ imprisonment. 

21.  I accept that the defendant has taken the chance to reflect deeply on his life while he has been on remand and is determined now to turn over a new leaf; I commend him for that and I wish him good luck in implementing it.

22.  The defendant is sentenced to 14 months’ imprisonment.