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DCCC876/2011
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 876 OF 2011
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HKSAR |
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v. |
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Lee Tak-po (D1) |
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Wong Chun-yu (D2) |
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Before:
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Deputy District Judge Joseph To
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Date:
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23 November 2011 at 10.03 am
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Present:
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Mr Alex Wong, PP, of the Department of Justice, for HKSAR
Ms Chan Ka-wai Betty, of Betty Chan & Co., for the 1st Defendant
Miss Chan Yee-man Ada, of S H Chan & Co., for the 2nd Defendant
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Offence:
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(1) & (2) Possession of dangerous drugs (管有危險藥物)
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Reasons for Sentence
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1. The defendants are each charged with one count of possession of dangerous drugs, preferred against them under section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134, to which they plead guilty.
Facts
2. The facts of the case are as follows.
3. On the afternoon of 18 June 2011, two police officers on patrol duty on Mong Kok Road found the defendants behaving in a suspicious manner: they turned around and walked away as soon as they saw the officers. The officers intercepted them.
4. In the left front pocket of the 1st defendant’s trousers were found a total of six plastic bags containing what was later chemically analysed to be a powder weighing 15.52 grammes with 11.47 grammes of ketamine in it.
5. In the 2nd defendant’s possession were found five plastic bags containing 13.02 grammes of a powder with 9.6 grammes of ketamine in it.
6. The defendants said they had purchased the ketamine for consumption.
Conviction
7. The court finds the defendants guilty as charged.
8. The 1st defendant has had five records before his current conviction, none of which was drug-related, and has been sentenced to detention at the Training Centre on two occasions.
9. The 2nd defendant has had two previous convictions of theft, for which a probation order was imposed.
Mitigation
10. In mitigation, the defence puts forward the following matters for the court’s consideration.
(1) The 1st defendant
11. The 1st defendant pleads guilty to the charge to show remorse.
12. Counsel submits that the defendant has been gainfully employed and has no financial needs. Whilst the defence accepts that a finding of latent risk is opened to the court, it is argued that the risk is not a significant one.
(2) The 2nd defendant
13. The defendant accepts criminal responsibility by pleading guilty to the charge.
14. The amount of ketamine he had in his possession was slightly less than that in the 1st defendant’s.
15. The defendant asks for a chance of rehabilitation, as this is his first conviction of a drug-related offence. He urges the court to adopt the recommendation of the Correctional Services. After all, he has responded well to probation orders in the past.
DATC reports
(1) The 1st defendant
16. According to the DATC report, the 1st defendant has been well-provided for during his childhood. He did not have much interest in formal studies and he turned wayward at an early age, which has gradually developed into an unruly lifestyle.
17. He has little respect for the law and has committed transgressions of it on repeated occasions. Probation and Training Centre orders have had little effect on him.
18. The medical officer of the Correctional Services opines that the 1st defendant is not a drug addict.
(2) The 2nd defendant
19. When the 2nd defendant was just three years old, his parents’ marriage broke down. His mother shouldered the responsibility of raising him.
20. The 2nd defendant lacks interest in academic pursuit and like the 1st defendant, he has also been gainfully employed.
21. Under the influence of some bad peers, he has gone astray and has started to take ketamine since 2009.
22. He is found to be a drug addict, and a DATC order is recommended.
Discussion
23. Drug abuse poses a constant threat to the well-being of the society. It wrecks a person’s life, sometimes beyond hope and repair. It ruins families and breeds crimes, ad hoc and organised.
24. Even those who have successfully fought and overcome their addition, which is itself a most painful process, their personalities and emotional make-up can be marred for life; employment opportunities for them are very often limited; and prospects of their reintegration into the society are grim.
25. What often awaits drug addicts and ex-drug addicts is extreme poverty over sustained periods and a life without self-esteem. As a result, the society suffers beyond measure.
26. The particular dangerous drug with which the court is concerned is “ketamine.” It is a psychotropic substance, often used by drug abusers in conjunction with alcohol or other dangerous drugs, and is well-known for its hallucinogenic effects.
27. The abuse of ketamine causes impairment of the cognitive function, in worst cases, making the abusers liable to drown, to fall from height, and to cause car accidents.
28. Medical experts have found a correlation between ketamine and kidney dysfunction and shrunken bladder effect.
29. Sociologist has opined that among places where ketamine was abused, Hong Kong appeared to be worse, and that ketamine hit our younger generation, particularly those under 21.
30. Academics have pointed out that ketamine caused amnesia and could be used to facilitate sexual assaults by hampering the victims’ memory of what happened.
31. The abuse of ketamine has in recent years become rampant in Hong Kong.
32. The court has had regard to the case of HKSAR v Wong Wah Sai (translit.) HCMA 1054/2008, together with the cases referred to in that judgment. It is the court’s view that in a possession case, while the court is required, when appropriate, to consider the latent risk factor, the court should refrain from making any comments, suggestions, or findings of fact that the offender might have had a present intention to traffic in part of the drugs.
33. In light of the outcome of the Wong Wah Sai’s case, the court considers that in a case of possession of ketamine involving an amount comparable to those seized in this case, a starting point of 12 months is called for. Given the amount of ketamine seized in this case was a significant one, and that it was found in a number of packets, the starting point should be enhanced by three months to account for the latent risk factor, resulting in an overall starting point of 15 months’ imprisonment.
Conclusion
34. Apart from his guilty plea, nothing in the 1st defendant’s personal and family background would justify any further discount. As he is not a drug addict, a DATC order is inappropriate. The court would adopt a starting point of 15 months, which is reduced by one-third on account of the defendant’s guilty plea to one of 10 months’ imprisonment.
35. Having considered all matters relevant to the 2nd defendant, the court considers that his case can be appropriately disposed of by way of a DATC order.
Order
36. The 1st defendant is sentenced to a term of imprisonment of 10 months. On consideration of the totality principle, the Court orders the 10 months’ imprisonment to be served concurrently with the remaining portion of the three months’ sentence in ESCC 3974/2011.
37. The 2nd defendant is sentenced to detention at the Drug Addiction Treatment Centre.
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(Joseph To)
Deputy District Judge |
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