HKSAR v. CHAN CHI WAH

DCCC 235/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 235 OF 2016

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Reasons for Sentence

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1. The defendant has been convicted of possession of a dangerous drug in respect of two charges. He was originally charged with trafficking in both charges, and was convicted of possession of those drugs, which he had indicated his agreement to plead to if he had such a trial.

2. For that reason, the defendant is entitled to be treated as if he had pleaded guilty to these charges.

3. The facts of the case are simple and were agreed by the defendant in the course of the evidence at trial.

4. The defendant lives as a street sleeper on the ground outside Tsui To House in Kwun Tong in Kowloon.  The police intercepted him on 15 December 2015.  They found 25 pellets of heroin inside a plastic bag in his pocket.  Those pellets contained a total of 2.58 grammes of heroin hydrochloride.

5. Later on, a further 25 pellets were found inside some food that the defendant had been eating.  They also were a further 25 pellets of heroin hydrochloride, with a total of 2.50 grammes of that drug.

6. The value of the drug was estimated at around $5,318.64.

7. The defendant has admitted possession of the drugs, and said all along that they were for his own consumption.  He had received a sum of money from a friend and spent all that money on drugs.  He paid what was established in the evidence to be the market price for those drugs, which meant that the defendant would not necessarily profit by selling on any of these drugs, but he may be tempted to do so by his straitened circumstances, as he lives as a street sleeper and may need finance.

8. The defendant’s antecedents show that he is 53 years old.  He is, as we see, unemployed, in receipt of CSSA.  He lives on the street, as it were.  He has been a long-term drug addict.

9. He has at least 10 previous court appearances dating back to 1978, when he was first convicted of possession of a dangerous drug and fined.  He has been to drug addiction treatment centre on at least two previous occasions.  He has been sentenced to imprisonment for drug offences, including an offence of trafficking in dangerous drugs in 2005, when he received a sentence of 8 months’ imprisonment.

10. But the defendant has not been involved in any drug offence for which he has been detected, in any event, since 2005, although he has admitted he has been consuming drugs throughout that period.

11. As he was convicted of possession of a dangerous drug, it was a requirement of the court to obtain a report for the Commissioner of Correctional Services as to his suitability for drug addiction treatment centre training.  The report is helpful.  The defendant is not recommended. The report notes the defendant was lured to start taking heroin in 1977 and was first convicted in 1978.  It notes that he has been charged, bound over, fined and imprisoned for this offence, sentenced to drug addiction treatment centre on four occasions, the last time in 1988.  He has joined voluntary drug treatment programmes run by the Christian New Life Association, and was drug free for a number of years, but resumed taking heroin in the late 1990s.  They observe he lacks determination in dealing with his drug problem seriously and has no insight into his problem.  It said he is no longer drug dependent, attributable to his period in custody, but I believe the court can have no confidence that he will remain drug free, and it is likely, because of his morbid addiction, that he will resume his drug taking on release.

12. The court must pass an appropriate sentence based on the evidence in the case.  The courts have observed that in sentencing of this nature that there is necessarily a three‑step approach to sentencing. Where the offender is a bona fide user and is convicted of simple possession of a dangerous drug, the steps are as follows.  Firstly, the judge normally determines a starting point of between 1 year to 18 months’ imprisonment for the offence of possession of a dangerous drug.  That starting point is increased or enhanced to take account of the latent risk factor in order to arrive at a total sentence.  This reflects the risk to society of the drugs being redistributed and finding their way into other hands apart from the offender’s.  The latent risk will be determined from all the circumstances in any particular case, including, of course, the quantity of drugs possessed and the personal circumstances of the offender.  The total sentence is then adjusted to take account of the mitigating factors such as a guilty plea.

13. Dealing with the first step, on each of these charges I must determine a starting point of between 1 year to 18 months’ imprisonment.  I consider the appropriate starting point for the defendant for this case, given his lengthy drug history, is one of 15 months’ imprisonment. So the starting point for sentence will be one of 15 months’ imprisonment on Charges 1 and 2.

14. I now must determine the latent risk factor.  It is a factor that must be determined in this case because the quantities of drugs are substantial - 25 pellets in respect of each charge - and the pellets are readily distributable because they are divided into a dose so they could easily be sold on.

15. Looking at the personal circumstances of the defendant, he is a man who has a limited income, and as I observed, in my judgment, not an income that could necessarily support his level of drug taking.  He was fortunate in that he had a windfall, so he would not necessarily be forced into selling the drug to maintain his drug addiction. But that does not mean that he would not do so and would not need money for other things.  What the defendant had done was convert the money he was given straight into drugs.

16. I am required as a matter of discretion to assess the risk and then convert that into a figure by which to enhance the sentence.  I accept that a risk would exist from the way in which the drugs are packaged and the particular circumstances of this offender.

17. In this case, in respect of each charge, I will enhance the sentence by a further 3 months to reflect the latent risk factor, which will give a starting point for sentence of 18 months on each charge.

18. This will be reduced down to 12 months’ imprisonment having regard to the defendant’s plea of guilty.

19. The offences were committed on the same time and same occasion.  These charges will be served concurrently to a total of 12 months’ imprisonment.