HKSAR v. MOREIRA ABHAY CHARAN DAS BATISTA

DCCC 808/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 808 OF 2016

-----------------------------

-----------------------------

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

1.  The defendant is the 2^nd defendant in DCCC 808/2016. He was charged with an offence of possession of a dangerous drug, namely, 0.08 gramme of a powder containing ketamine (Charge 4). Charges 1, 2 and 3 charged the 1^st defendant with other drug-related offences.

Facts

2.  He pleaded guilty to the offence on 15 February 2017 and admitted to the facts. The facts show that he was arrested on suspicion of trafficking in dangerous drugs at approximately 9:10 am on 23 December 2015 outside C1 Unit, 1/F, Lee Shun Building, 157-159 Lockhart Road, Wan Chai.  He was stopped and arrested along with the 1^st defendant in this case.  At the police station, he was searched and a transparent bottle was found in his right front trouser pocket.  This bottle contained white powdery substance which was suspected to be dangerous drugs and he was arrested for possession of dangerous drugs. Subsequent analysis of the white powdery substance by the government chemist showed that it contained the amount of drugs as particularised in the charge.

3.  Although the 1st and 2nd defendants were charged in the same charge sheet, counsel for the prosecution and counsel for both defendants considered that the court could deal with the sentence of this defendant.

Criminal Conviction

4.  The criminal record of this defendant shows that he has three criminal convictions on 15 July 2015.  He received a concurrent sentence of 6 months for offences of possession of a dangerous drug (6 months), possession of equipment fit and intended for inhaling dangerous drugs (2 months) and possession of arms or ammunition without a licence (4 months).

Mitigation

5.  In mitigation, Mr Chan submitted that the defendant worked as a model earning $25,000 a month.  His parents live in India and he has to support his parents financially.  He possessed the subject ketamine for self-consumption.  He further submitted that a short prison term might be inevitable and unavoidable.

6.  In light of his previous conviction for the same offence, a drug addiction treatment report, DATC, was called for.

Reasons for sentence

7.  I am told this morning that the content of the report was explained to him and that he agreed with it.

8.  The DATC report showed the following.  The defendant, born in Brazil, is now aged 27.   He came to Hong Kong in 2009 and then he completed a 4-year bachelor’s degree course in English Linguistic in the Open University of Hong Kong.  He lived in Causeway Bay.  In 2010, he got married.  However, he later had a girlfriend who gave birth to their son in 2012 who is now 4 years old living with his mother.  In February 2015, his wife divorced him.

9.  He started taking ecstasy, cocaine and ketamine in 2010.  He was arrested, inter alia, for possession of a dangerous drug and sentenced to 6 months’ imprisonment in July 2015.  He was released in August 2015.  He was arrested for the present offence on 23 December 2015 and allowed bail in January 2016. However, he was arrested by the police on 29 November 2016 for an outstanding offence of burglary for which he will have to attend court on 16 March 2016. The defendant’s urine specimen collected upon his admission to Lai Chi Kok Reception Centre on 7 December 2016 was found positive for Ice.  Obviously, he is a drug addict.

10.  The report said that he was permitted to remain in Hong Kong until 8 November 2015.  Currently, he is an overstayer in Hong Kong.  It may not be practical to administer to him the one-year statutory supervision after serving the treatment period in the DATC, which is part and parcel of the whole drug abstinence programme.  Therefore, he was not recommended to be sentenced to a DATC.

11.  In assessing the appropriate sentence, I have considered a number of authorities including HKSAR v Chu Ka Ming, 朱嘉銘, HCMA  664/2011; HKSAR v Tsang Chun Hin,曾俊軒, HCMA 639 & 640/2014; HKSAR v Tam Chun Kui,譚振炬, HCMA 566/2012.  All of them are Chinese judgments.  I bear in mind that the facts of those cases are different from the present case and that the appellants in those cases have different background and different previous criminal convictions.

12.  Having considered all the circumstances of the case including the small amount of ketamine involved, I adopt a starting point for sentence of 21 weeks’ imprisonment.  He has indicated his plea of guilty before trial.  I am prepared to give him the full one-third discount.  I do not consider that there is a latent risk in this case.

13.  After the one-third discount for plea, the defendant is sentenced to serve a prison term of 14 weeks’ imprisonment.