HKSAR v. CHOU KIN PONG, EVEN

DCCC 1149/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1149 OF 2008

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Reasons for Sentence

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The charge and facts

1.  The defendant pleads guilty to possession of a dangerous drug.  The offence took place at 11:33 p.m. on 22 October 2008.  He was seen getting off his car on Fa Yuen Street and walking towards Dundas Street in a furtive manner.  The police stopped and searched him.  It yielded a cigarette box containing 2 plastic bags of ketamine.   

2. Under caution he admitted that it was for self-consumption.  He had bought it in Tsuen Wan for $2,000. 

3. A government chemist analysed and weighed the substance. The substance in each bag was of about the same weight.  The total was 26.39 grammes of a powder containing 22.62 grammes of ketamine. 

The Defendant’s circumstances

4. The mitigating letters from his father, his employer, and himself and the Drug Addiction Treatment Centre Report have given me some useful information about his background.  He is now 25 years old.  He has attained F. 5 education.  He has been a lorry attendant for 5 years.  He lives with his parents and 4 sisters.  His father is 73 years old and suffers chronic lung disease.  His employer commends him as a hardworking and responsible employee.  He consumes drugs to alleviate pressure at work and his sense of inferiority.    

5. He has 4 previous convictions, one of which was for a similar offence in 2002 where he was put on probation.  That was his second probation.  His first probation was in 2000 for publishing and possessing indecent articles. 

The principles for sentencing

Sentencing options for simple possession

6. Section 8 of the Dangerous Drugs Ordinance (Cap. 134) states the maximum fine and term of imprisonment as follows:

(1)   Save under and in accordance with this Ordinance or a licence granted by the Director thereunder, no person shall-

(a) have in his possession; or (b) smoke, inhale, ingest or inject, a dangerous drug.

(2) Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence and shall be liable-

(a) on conviction upon indictment to a fine of $1000000 and, subject to section 54A, to imprisonment for 7 years; or (b) on summary conviction to a fine of $100000 and, subject to section 54A, to imprisonment for 3 years.   (my emphasis)

Section 54A allows for other types of sentence as follows:

(1)   Subject to subsection (1A), no sentence, other than a non-custodial sentence, shall be imposed on a person for an offence against section 8 or 36 unless the court has first considered a report of the Commissioner of Correctional Services on the suitability of such person for cure and rehabilitation and on the availability of places at addiction treatment centres (as defined in the Drug Addiction Treatment Centres Ordinance (Cap 244)) (Amended L.N. 30 of 1982; 24 of 1987 s.4)

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(4) In this section "non-custodial sentence" means one or more of the following sentences-

(a) a fine; (b) a probation order under section 3 of the Probation of Offenders Ordinance (Cap 298); (c) a suspended sentence of imprisonment under section 109B of the Criminal Procedure Ordinance (Cap 221).

Latent risk

7. In Attorney General v Chan Ching-ho[1994] 2 HKC 457, Power VP said, at 458:

The seriousness of possession of a large quantity of drugs was well-described by Judge Lugar-Mawson in Chiu Hung-wong'scase when he said at p. 189, lines 31-45:     

“The amount in the possession of the respondent was indeed substantial. The sentence on a person found to have been trafficking in that amount would be in the band ranging from eight to twelve years. We remind ourselves immediately that he was found guilty only of simple possession and must be dealt with upon that basis. The gravamen of such an offence, when a large quantity of drugs, is involved is the danger which is posed to society by having such drugs "at large" in the control of an addict. The amount involved cannot but be regarded as being in the top range of quantity where it would be proper to lay a charge of simple possession rather than one of possession for the purpose of trafficking. We so observe as it indicates that this offence must be ranked among the more serious offences that could be committed by an offender convicted under s. 8.”

Sentencing the trafficker

8. The Court of Appeal in Secretary for Justice v Hii Siew Cheng CAAR 7/2006 has laid down sentencing tariffs for trafficking in ketamine as follows:

 (1) up to 1 gramme – within the sentencer’s discretion;

(2) over 1 gramme to 10 grammes – 2 to 4 years’ imprisonment;

(3) 10 to 50 grammes – 4 to 6 years’ imprisonment;

(4) 50 to 300 grammes – 6 to 9 years’ imprisonment;

(5) 300 to 600 grammes – 9 to 12 years’ imprisonment;

(6) 600 to 1000 grammes – 12 to 14 years’ imprisonment; and

(7) over 1000 grammes – 14 years upwards. 

The sentence I pass

9. In the DATC Medical Officer’s opinion, the Defendant is no longer a drug dependant.  He is not recommended for the DATC.  If he had been charged with trafficking, he would have faced 4 to 6 years’ imprisonment.  The maximum sentence for simple possession on conviction upon indictment is 7 years.  It cannot be overstressed that he is to be sentenced here for simple possession and not trafficking.  I rule out all non-custodial sentences because of the quantity involved and his background.   Based on the principle in Chan Ching-ho (supra) and Chiu Hung-wong (supra), the latent risk factor must be taken into account. 

10. I take 2 years as the starting point.  Because of his plea of guilty, I reduce it to 1 year and 4 months.  There are no other mitigating factors.  This is the sentence I pass.