HKSAR v. CHAN HO NAM

DCCC772/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.772 OF 2011

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Reasons for Sentence

1.  The defendant faced one charge of trafficking in dangerous drugs and one charge of possession of dangerous drugs. He pleaded not guilty to trafficking the dangerous drugs in charge 1 but admitted to their possession. He pleaded guilty to charge 2. After trial, the defendant was acquitted of trafficking and found guilty o the lesser charge of possession.

Facts

2.  The defendant was stopped outside his home by Police officers conducting an anti-drugs operation. Ketamine was found in his trousers pocket upon search. The defendant was then brought into his home where the ketamine in charge 1 was found in a plastic bag hidden above a wardrobe in his room. The defendant all along maintained that he had bought the ketamine for his own consumption.

3.  According to the defendant’s video recorded interview, he bought the ketamine from an Ah Keung in a park downstairs to where he was living for around $1,500. He bought this amount because he would be given a discount for bulk buying. He bought the ketamine for his own consumption. Although he was living with his family in the flat where the ketamine was found, they had nothing to do with any of the dangerous drugs found in the flat.

4.  Taking all the circumstances into consideration, I found that I could not be sure that I can draw the irresistible inference that the defendant possessed the ketamine mixture for the purpose of trafficking based solely on the quantity of ketamine found and the street value of them. There were no other paraphernalia found in the flat, things like scales or even the ubiquitous small resalable plastic bags were all absent.

5.  I granted the defendant the benefit of the doubt and found him not guilty of the charge of trafficking in dangerous drugs but guilty of the lesser offence of possession of the dangerous drugs as particularized in charge 1.

6.  I also found the defendant guilty of charge 2 based on the evidence in his video recorded interview.

Previous conviction

7.  The defendant has a clear record.

8.  The sentencing for the defendant was adjourned for information relevant to sentencing to be provided by the prosecution. A Drug Addiction Treatment Centre report was ordered to be prepared on the defendant pending sentencing.

9.  On 10^th November 2011, the above mentioned information were provided.

Sentence

10.  I am sentencing the defendant on 2 charges of possession of dangerous drugs. The drugs involved are ketamine. The amount involved are respectively 29.73g and 1.96g.

11.  A DATC report was obtained and it is confirmed that the defendant is not a drug addict.

12.  It was submitted in mitigation that the court should take into consideration the defendant’s young age, clear record and his guilty plea. More importantly, the remorseful attitude of the defendant and his determination to get rid of the addiction. I was informed that since May, shortly after his arrest, the defendant had been residing at Wu Oi centre for residential treatment that should last for about 12 months. Counsel for the defendant ask for a sentence that would allow him to finish the treatment.

13.  In relation to latent risk, counsel for the defendant submitted that the court has to look not just at the quantity of the drugs, but into the circumstances of the case such as the financial situation of the defendant and whether there was a tendency to sell the drugs. It was submitted that the risk in this case is minor or that there is no evidence to suggest that there is a latent risk. The defendant all along had stable employment and there is no suggestion that he shared the drugs with others.

Sentence

Charge 1

14.  In relation to charge 1, I adopt a 16 months starting point. I find that there is a latent risk based on the quantity of the drugs found. I will enhance this sentence by 40%. I will, based on the defendant’s personal circumstances, his previously clear record and other relevant factors further reduce this sentence by around 20%. The starting point I arrived at after the various discounts is that of 18 months imprisonment. I will then grant the defendant the full one third discount for his guilty plea and sentence him to 12 months’ imprisonment on charge 1.

Charge 2

15.  In relation to charge 2, I adopt a starting point of 12 months’ imprisonment, grant the defendant a 20% discount for the relevant factors bringing the starting point down to 9 months’ imprisonment. I grant him the full one third discount and reduce that to 6 months’ imprisonment.

16.  I order the sentences to be served concurrently.