COURT: The defendant faced a charge of trafficking in dangerous drugs. He pleaded not guilty to that charge but guilty to a charge of possession of a dangerous drug. This was accepted and a plea of guilty to simple possession was entered on his behalf.
Before dealing with sentence, I ordered a Drug Addiction Treatment Centre report pursuant to section 54A of the Dangerous Drugs Ordinance. The report is comprehensive and the defendant agrees to the contents of the report. The medical officer is of the opinion that he is no longer a drug dependent. A detention order has previously been made to DATC on three occasions, in 2001, 2009 and 2012, and therefore he is considered not suitable for admission to a Drug Addiction Treatment Centre.
Turning to the facts, on 8 May 2013, at about 2.50 am, the defendant was seen by police officers in a lift lobby of Kin Wing Commercial Building in King Wing Street, Tuen Mun. When the police approached the defendant in the lobby, the defendant turned around and ran upstairs. The police gave chase. The defendant was intercepted on the 3rd floor inside the male toilet of the Gold Ball Billiard Centre.
Found inside the defendant’s right jeans pocket were the dangerous drugs being 13.24 grammes of methamphetamine hydrochloride, otherwise commonly known as “Ice”. Upon arrest for possession of a dangerous drug, the defendant replied that he had bought the drugs for his own consumption.
The defendant is 34 years of age. He has 22 previous convictions, seven of which are related to drugs. He commenced taking drugs in 1995. He has been a long-term drug dependent. He started abusing “Ice”, changing from heroin in 2005. 2012 was his last sentence to DATC, again for possession of dangerous drugs.
It is clear from the case of HKSAR v Mok Cho Tik [2001] 1 HKC at 261 that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession, should be in the range of 12 to 18 months. The quantity would be the main governing factor which would determine where the starting point would lie. If an offender was a persistent offender, he could expect the starting point to be higher than it would otherwise be.
The court also considered the existence of the risk factor, that is, the latent risk that these drugs would be passed on to other people. The obvious factors to be taken into account when considering latent risks are whether the offender was in employment, whether the drugs were kept in a place to which others had access, whether the offender had convictions for trafficking, and the quantity of drugs.
I note here that the defendant is an addict, or was an addict at the time he had the drugs in his possession, and that he had the drugs for his own consumption. However, I do not accept his claim in the DATC report that he would take 1 to 2 grammes a day.
I reject his consumption rate and rely on the case of Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 at 128 to 129 where the rate of consumption of “Ice” is discussed in some detail. It is plain that this quantity would have lasted a considerable time, that is, between about two weeks to a month. The defendant has eight previous convictions relating to drugs, no convictions for trafficking. I note that at the time he was arrested he was in employment.
Given the amount of drugs and the time during which the defendant would have had these drugs in his possession, I am satisfied that there was a latent risk but that it was not one of any real gravity. He had just purchased the drugs approximately an hour before he was arrested. His original intention was to take the drugs to his home where he would keep them. He was in regular employment. He was an addict without any conviction for trafficking. The drugs were wrapped up in one transparent bag with white tape around it.
In those circumstances, I am satisfied that a sentence for the latent risk should be one of 6 months’ imprisonment.
For the offence of possession of a dangerous drug, I take a starting point of 15 months had you been convicted after trial, and added to that 15 months is an enhancement of 6 months for the latent risk.
Your greatest mitigating factor is your plea of guilty. Giving you the one-third discount that term shall be reduced to one of 14 months’ imprisonment, or 1 year and 2 months’ imprisonment.