HKSAR v. LO KA WAI

DCCC1154/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1154 OF 2010

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Reasons for Sentence

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1.  Two weeks ago you appeared before me in the District Court and originally faced a single charge of trafficking in dangerous drugs. Before trial, the prosecution has amended the charge to one of possession of a dangerous drug, contrary to section 8 of the Dangerous Drugs Ordinance, Cap.134.

2.  You pleaded guilty to this charge.  The subject matter of the charge is in relation to 26.83 grammes of a powder containing 22.91 grammes of ketamine.  Pursuant to section 54A of the Dangerous Drugs Ordinance, I adjourned the sentence after hearing preliminary mitigation made on your behalf by your counsel for the preparation of a Drug Addiction Treatment Centre (DATC) report.

3.  Today I have the benefit of reading the report. I was told by your counsel that you agreed to this report.  The report says that because you have already been in custody for the last 6 months since your arrest, you were no longer a drug-dependent.  As such, you are not considered to be suitable for admission to the DATC. 

4.  The facts of the case are simple enough.  It is a classic stop and search case. 

5.  On 19 August 2010, three police officers conducted an anti-dangerous drugs operation in the Lei Cheng Uk Estate in Kowloon.  At about 2233 hours, one of the police officers saw you wandering about at the lobby of one block of the public housing estate there and you were nervous and was therefore intercepted for inspection of your identity.

6.  As a result of the search on your person, the police found altogether two plastic bags containing the dangerous drugs in question from the right front pocket of your jeans.  Under caution, you admitted that those two bags of drugs contained ketamine, and you further claimed that these are all for your own self-consumption.  

7.  You had in the past altogether five previous convictions. You have three similar possession of dangerous drugs records.  In the first occasion in 2007 you were given a chance of probation of 18 months.  However, you further committed a similar offence of possession of dangerous drugs, for which you were sentenced to DATC in the next year, 2008.

8.  According to the DATC report, you were released in December 2008 from the DATC and you were subject to 1 year supervision. Unfortunately, due to the influence of the peers, you took ketamine again in 2010. 

9.  Apart from the present offence, you were also arrested for another offence of possession of a dangerous drug, for which you were sentenced to receive 5 months’ imprisonment in December 2010.  You have already served the terms of that imprisonment but subsequently you are now remanded in Lai Chi Kok Reception Centre for the present offence.

10.  The DATC report further reveals that you came from a rather unfortunate background because your parents divorced when you were at the age of 6 and therefore you have all along  received inadequate parental supervision.  At school, you did not pay attention to the school work and you mingled with some undesirable peers with a triad background in your early teen years. In the end you dropped out from school altogether without completing Form 2. 

11.  I can see from your report that your trouble is really your bad association with those dubious peers and that is why subsequently you have developed into this vice habit of taking drugs as early as 2005.  Although you have been put on probation and sent to DATC, you still failed to kick the habit, and again and again you violated the law. 

12.  You must consider yourself very lucky this time because originally you were facing a trafficking charge.  As the charge was now amended to one of possession so the time you are going to spend in custody will not be that long.  Coupled with the fact that you are no longer a drug addict, I hope you can really learn the lesson this time, and after you are released, and to cut off your linkage with all your dubious friends, altogether.  If not, I am sure it will not be long when you will be facing another trafficking in dangerous drug offence.

13.  In sentencing, I was helpfully supplied by your counsel a case of possession of ketamine: HKSAR v Ho Ka Kei (CACC378/2009). In that case, the appellant was also faced with a possession of dangerous drugs charge, concerning as it were 20.42 grammes of ketamine, a quantity which is described by the Court of Appeal as substantial and which is also very close to the quantity of dangerous drugs which  we are now dealing with. 

14.  Dealing with the sentence of possession of dangerous drugs, the Court of Appeal had reminded the sentencing judges that it carries with it always a clear latent risk factor, which  should not he overlooked. The Court of Appeal eventually adopted 18 months’ imprisonment as a starting point for the quantity and then further added 6 months to reflect the latent risk factor.  The total overall starting point in the end is one of 24 months’ imprisonment.

15.  I consider that I can use the same rationale and starting point and also the latent risk enhancement to apply in the present case.  In your case, therefore, the starting point is also one of 24 months’ imprisonment.  You pleaded guilty, for which you would receive a customary one-third discount.  

16.  Your counsel had urged the court to further consider reducing your sentence on account of your young age.  Although you are young, you are not that young.  You have already been convicted of possession of dangerous drugs three times in the past and this is already your fourth conviction.  A bitter lesson has to be learned and I do not consider a further reduction of the sentence is appropriate.

17.  In the end, I order you to serve a sentence of 16 months’ imprisonment.