HKSAR v. LEUNG HO YIN

DCCC962/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 962 OF 2011

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Reasons for Sentence

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1.  The defendant had pleaded guilty to a charge of possession of dangerous drug, namely 24.17 grammes of a powder containing 18.3 grammes of ketamine.

2.  On 7 July 2011, the police intercepted the defendant when he left his flat and found the drugs inside his trousers pocket.  Under caution, he said that he spent $1,600 to buy the drugs for his own consumption.  At the time of arrest he intended to hide the drugs somewhere outside the premises. 

3.  The defendant is now 24 years old, single.  He had one previous conviction of possession of dangerous drugs in 2008 of which he was sentenced to 4 months suspended for 12 months and fined $1,000.

4.  He started to take ketamine in April this year again.  However, he had been remanded for 5 months and therefore the DATC report says that he is no longer a drug addict.

5.  In mitigation, counsel had referred me to HKSAR v Ho Ka-kei CACC378/2009 and in that case the quantity involved was 20.42 grammes of ketamine.  The court considered 18 months as the appropriate starting point and added 6 months to reflect the latent risk factor.  After one-third discount the sentence arrived at 16 months.

6.  The defence in mitigation also tried very hard to persuade me not to impose an enhanced sentence on the latent risk factor as the defendant had told the police, when arrested , that the drugs were for his own consumption.  The drugs were found on his body just outside his flat.  House search did not find any packing equipment such as scale or small plastic bags for repackaging.  However, I disagree, for 18.38 grammes it is a very substantial quantity of drugs involved.

7.  The defendant earned $6,000 to $6,500 per month, he only paid $500 to his parents as contribution to the household expenses.  This is a clear indication that he, himself, needed to retain major part of his salary for his own spending.  Drug is one of his major expenses.  He needed the money to finance his drug habit.  He said that he spent $1,600 to buy the drugs, which was a great portion of his salary. 

8.  The prosecution said that the street value of the drugs for 18 grammes was about $2,000.  There is a difference of $400 and therefore there is still a resale value in the drugs.  As pointed out before the defendant had one previous conviction of possession of dangerous drugs in 2008.  He claimed that he stopped taking drugs since then.  However, he took drugs again since April this year because of bad influence from his friends. 

9.  He was arrested when he left his flat and he claimed that he intended to hide those drugs somewhere outside his premises.  He did not want his family to know about his drug problem.  As he said, he started to take drug three months before the arrest, how did he avoid from being discovered by his family was really difficult to understand.  On the other hand, hiding the drugs outside the premises, every time when he went to collect it and brought it back somewhere to take it also increased his risks of being arrested.

10.  He definitely had association of those people who also took drugs.  This court cannot deny the latent risk factor as there would be a chance that the drugs might go into the wrong hands of the drug society. 

11.  In passing sentence I bear in mind of all the mitigating factors put before me.  In view of the quantity of ketamine is about 18.38 grammes, which was similar to the case of Ho Ka-kei, I therefore adopt a starting point of 18 months, 6 months for the latent risk factor, one-third discount to reflect the defendant’s  guilty plea; the sentence is one of 16 months.