DCCC352/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 352 OF 2010

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to two charges before me. The 1st charge is a charge of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance. You have admitted that on 5 December 2009, outside Pok Yuen House, Pok Hong Estate, Shatin, New Territories, you had in your possession 17.52 grammes of a powder, containing 4.57 grammes of ketamine. In respect of the 2nd charge, you admitted that you were in possession of a forged identity card on the same date at the same location without lawful authority or reason or excuse in the name of one Chan Yuen-hoi.

2.  On the day in question, plainclothes police officers were patrolling at Pok Hong Estate, Shatin.  When they were near Pok Yuen House, they saw you walking towards them.  As you were acting furtively, they intercepted you for enquiry.  They asked you for your ID card and conducted a search on you.  Upon search the officer found three plastic bags from the right-front pocket of your trousers.  Each of these three bags contained the dangerous drugs in question.  The officer asked you, after caution, about the nature of the drugs, and you said they were “K Chai” and were bought from a man at $500 in Mongkok.  You further said that the “K Chai” was for your own consumption.  You were arrested for possession of the dangerous drug. 

3.  The officer thought that the ID card you produced looked a bit suspicious as it was too yellow and the electronic chip had protruded outwards.  He, therefore, asked you if the card was genuine.  You admitted it was a forged one.  You added that you purchased this forged ID card from a man called Ah Man for $400, about half a year ago.  You explained that you had been sentenced to attend a voluntary drug addiction treatment programme for a drug related case in Kowloon City Magistracy about a year ago, but that you did not attend this programme.  Thus you used the forged ID card to avoid detection. 

4.  Your counsel, Mr Finny Chan, has mitigated fully on your behalf on the last occasion and today.  You are 20 years old and have two previous convictions, one similar, for possession of a dangerous drug, to which you were originally sentenced to probation for 18 months in April of 2009.  But in December 2009, because you breached your probation order by not attending the Voluntary Drug Treatment Centre, you were sentenced to the Drug Addiction Treatment Centre.  The other offence was in 2007 for aiding and abetting the dealing with property known or believed to represent proceeds of an indictable offence for that offence, you were sentenced to Rehabilitation Centre. 

5.  Prior to sentencing you today I called for a Drug Addition Treatment Centre to find out whether you were drug dependent.  The report states that you are no longer drug dependent, and you are considered, therefore, not suitable for Drug Addiction Treatment Centre.

6.  In a nutshell, you were sentenced to DATC in December 2009.  However, at the same time you committed on 5 December, this present offence.  You immediately went to DATC and received drug treatment.  After you were released from the DATC, that is in April 2010, you were remanded in custody until your appearance before me today.  Therefore, I might say this. From December 2009 till today, 9 September, you have been treated for your drug addiction and have been remanded in custody, so you have not been within the community.   So, for that reason, perhaps you are no longer drug dependent as well. 

7.  Despite your young age, defendant, you have been in trouble with the law on a number of occasions.  Since you left school in 2005 you have not been able to secure a stable job.  Your father tried to assist you and arranged work alongside him as a decoration worker, but this did not last long.  As can be seen from the report, you have a very supportive family, and they are all present here today.  Despite their support and their assistance to you, it appears that you are still having brushes with the law. Your mother has said that it is part her fault as she is unable to keep sufficient supervision on you and has attributed your wrongdoing to your acquaintance with undesirable peers and playful characters. 

8.  No doubt you do not have sufficient control upon yourself.  Despite being placed on probation for a drug offence, you soon relapsed into drugs.  Defendant, I think you will know now drugs may give you a short time of euphoria, but gives you a long time of misery.  It is not worth your while.  You are only 20 years of age.  You are young.  You are fit.  You are not disabled, capable of working.  Do not throw your life away now.

9.  Clearly, as you are not suitable for the Drug Addiction Treatment Centre, rehabilitative sentence in that sense is not appropriate.  The quantity of drugs which you had in your possession was not small.  That leaves me only open to a sentence of imprisonment. 

10.  The usual sentence for possession of dangerous drugs, after trial, is one between 12 to 18 months’ imprisonment.  The quantity would be the main governing factor which would determine where that starting point would lie.  This is not your first offence.  You have one previous conviction of dangerous drugs only last year.  Given the quantity concerned I consider a term of 12 months’ imprisonment to be appropriate.

11.  I turn to look to see if there was the existence of latent risk of some of the drugs finding its way into the hands of the public.  The amount of drugs, as I said, was fairly large, 14.57 grammes.  At the material time you were unemployed.  Although Mr Chan has said that you bought these drugs from your savings, I am not convinced that you had sufficient funds necessarily to continue to purchase drugs to support your intake.

12.  I am told by Mr Chan that these drugs would have lasted approximately ten days.  You were found in your building where you lived.  You say you were on your way back home as you had just purchased the drugs that day but had ordered them two days previously.  I note you have no previous conviction for trafficking.  However, given the quantity of drugs, the fact that you were unemployed and the fact that you do take drugs with your peers, I consider that there was a latent risk, and in those circumstances I would enhance your sentence by three months. 

13.  That would mean that the starting point for Charge 1 would be 15 months' imprisonment.  However, giving you full credit for your plea of guilty, that term is to be reduced, and you will be sentenced to 10 months' imprisonment on Charge 1.

14.  On Charge 2, that is a charge of possession of a forged ID card, this ID card was purchased by you with a deliberate intention to avoid detection as you had knowingly fled from the Drug Treatment Centre to which you were sentenced to on probation.  I consider this a very serious offence.  You produced this to the police when you were stopped and intercepted.  Fortunately the police noticed or were observant enough that this was a suspicious card.  However, I accept you immediately admitted that it was forged, and forthrightly told the officers why you had this ID card.  For this offence, I adopt a starting point of 15 months' imprisonment.  However, giving you full credit for your plea, that term should be reduced to 10 months’ imprisonment. 

15.  Now I must consider the principle of totality in sentencing you for these two offences.  In my consideration, I consider that three months of Charge 2 is to run consecutive to Charge 1.  That makes a total of 13 months' imprisonment, to which you are so sentenced.