HKSAR v. DOVALE RAJIV OMIHR

DCCC 441/2024

[2025] HKDC 857

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 441 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant was charged with one count of trafficking in dangerous drugs.  He pleaded not guilty to the charge but guilty to possession of dangerous drugs.  After trial, he was found not guilty of the charge but guilty of possession of dangerous drugs. 

Facts

2.  I have set out details of the facts in the Reasons for Verdict.  I am not going to repeat the facts.  In gist, the defendant was intercepted and searched near Lan Kwai Fong, Central.  He was found in possession of 8 transparent re-sealable plastic bags containing a total of 3.04 grammes of cocaine and 4 transparent re-sealable plastic bags containing a tablet containing 0.09 gramme of MDMA and a total of 1.13 grammes of MDMA. 

Mitigation

3.  The defendant is aged 36, a Dutch national.  He runs 2 businesses in the Netherlands.  His father passed away in 2016.  His mother lives in the Netherlands and he is responsible for taking care of his mother.  He has a clear record in Hong Kong. 

4.  Prior to the offence, he came to Hong Kong regularly to look for business opportunity in Hong Kong.  Due to the Covid-19, his businesses in the Netherlands decline.  As he was under stress, he started abusing drugs by taking herbal cannabis.  When he was in Hong Kong, he was lured by others to try cocaine and thus he bought the drugs, the subject matter of this case.

5.  It was submitted by the defence that since the arrest, the defendant was not allowed to leave Hong Kong.  It was equivalent to his being detained in Hong Kong for a period of 1 ½ years.  As a result, his businesses further decline due to lack of management.  The defendant knew he had done wrong by taking drugs.  During his time in Hong Kong, he successfully quitted his drug taking habit.  It was further submitted that the defendant would not be granted visa to enter Hong Kong again given his conviction.  Therefore, the chance of his re-offending is low.

6.  Defence submitted that given the defendant is no longer a drug addict, the calling of a DATC report would not serve any useful purpose.  Given the quantity of drugs is not very high, the defendant has quitted his drug taking habit, and that he was forced to stay in Hong Kong for over 1 year and has complied with the bail terms so far, it was suggested that this Court may consider imposing suspended sentence on the defendant.  

Sentence

7.  Having considered the submissions from the defence, I agree this case can be dealt with by way of suspended sentence and no DATC report will be called. 

8.  For possession of dangerous drugs, the usual starting point would be in the range of 12 to 18 months’ imprisonment[1]. Given the amount of drugs is 3.04 grammes of cocaine and 1.22 grammes of MDMA, I consider the appropriate starting point to be 6 months’ imprisonment.  On top of that, the starting point is to be adjusted upward for 1.5 months for the latent risk given the drugs were packed in several packages.  Therefore, the overall starting point is 7.5 months’ imprisonment.  Given the defendant’s plea, the sentence is reduced to 5 months’ imprisonment.  Having considered the circumstances as mentioned by the defence in mitigation, I consider this is an appropriate case to impose suspended sentence.  Therefore, the 5 months’ imprisonment is to be suspended for 3 years.