HKSAR v. KWOK SIU WAI

 DCCC1128/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1128 OF 2010

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Reasons for Sentence

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1.  Defendant, you have pleaded not guilty to a single offence of trafficking in dangerous drugs, but admitted simple possession, contrary to section 8 of the Dangerous Drugs Ordinance, Cap. 134. The prosecution indicated that they would accept that plea to the lesser charge. You admitted the brief facts, and I convicted you on those facts.

2.  Briefly what happened is this. At about 6.45 pm, on 14 August last, police were patrolling outside the Well On Arcade, No. 9 Yuk Nga Lane, Tseung Kwan O. PW1, a police officer, saw you acting furtively, so he intercepted you and searched you. In your right-front pocket of your jeans he found a transparent resealable plastic bag containing suspected dangerous drugs, Exhibit 1. This was wrapped in tissue paper, Exhibit 2. You were, therefore, arrested.

3.  In the subsequent interview, under caution, you claimed that Ah Wai gave you a cigarette box allegedly containing some mainland cigarettes. You claimed to have not checked the contents and did not know what the box contained. Subsequent analysis showed PW1 to be 27.91 grammes of a mixture containing 24.09 grammes of heroin hydrochloride. The estimated street value is some $25,370.

4.  You admit to two previous convictions on the same occasion. That was 6 June 1995, some 16 years ago. As this was a case of simple possession, I have adjourned the case and called for a DATC report, which is now before the court. That report concludes that you are a drug dependent and that a DATC order is recommended.

5.  On your behalf, Mr Bruce has entered what I regard as very persuasive mitigation in this case in urging me to accept DATC as a sentence. He informed me that you are in full agreement with the contents of the DATC report, and indeed certain sections of that report provided the basis of some mitigation.

6.  I am told, and that is confirmed by the report, that you are in a stable relationship with your common law wife, a relationship of over nine years, and together you have a young son who suffers from arrhythmia(?). I note and I accept that your young son will need considerable medical support for some time to come.

7.  It seems also that shortly after this event you were diagnosed to suffer from gastic ulcers. I am told that the unfortunate ill health of your son, coupled with your own ill health, drove you back to your life of addiction, which you seem to have left behind some 15 years ago. I have to comment here that I regard that as an explanation, but not an excuse for what you have done.

8.  Also, since your last conviction, you and your common law wife have established a successful business, and I am told that together you earn some $34,000 per month.

9.  My main concern in this case has always been the rather high amount of drugs involved. Mr Bruce has given an explanation for that and submitted to me that there is little or no latent risk, and, in support of this, he mentions the following factors. As a family, you enjoy a reasonable level of income. This seems to suggest that you are able to afford to purchase a large quantity of drugs and have less reason to have to sell them.

10.  The search of your home premises revealed no paraphernalia for distribution, and your explanation for buying such a large quantity is logical. Also I accept that your arrest took place near your salon, that is your place of business. You have also demonstrated a significant level of remorse, which I accept.

11.  I will take, therefore, a somewhat unusual course in these circumstances. I will opt for treatment rather than pure punishment. I take the view that this would be of assistance to yourself, in the interest of your family, and in the interest of society as a whole. It would mean a significant period of treatment, covered thereby by a period of further supervision. I bear in mind also that it is 16 years since your last conviction.

12.  I therefore make a DATC order. I do order that the conviction be recorded.