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DCCC 149/2018
[2018] HKDC 916
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 149 OF 2018
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| Present: |
Mr Liu Yuen Ming, Counsel on Fiat, for HKSAR
Miss Claudia Lam instructed by Francis Kong & Co, for the defendant |
| Offence: |
Possession of a dangerous drug (管有危險藥物) |
REASONS FOR SENTENCE
1. The defendant pleads guilty to one charge of possession of 4.46 grammes of a solid containing 4.09 grammes of cocaine, contrary to section 8 of the Dangerous Drugs Ordinance[1].
2. In summary at about 2140 hours on 18 November last year the police conducted a liquor licence check at Neway Entertainment Limited on L17 of the MegaBox Shopping Centre in Kowloon Bay.
3. Inside karaoke room M128 the police found on the floor, near where the defendant was sitting in the gap between two sofas, a plastic bag containing ten re-sealable plastic bags, four containing cocaine and six containing traces of cocaine and a cigarette box containing nineteen re-sealable plastic bags all containing cocaine.
4. Under caution and in a subsequent video recorded interview the defendant admitted that the cocaine was for his own consumption.
Mitigation
5. In passing sentence, I have carefully considered everything said on behalf of the defendant by Miss Lam, together with the mitigation letters written by his elder sister and auntie. I take into account the defendant is only 22 and has a clear record.
6. Miss Lam tells the court that the defendant’s girlfriend suffers from psychiatric illness. Not knowing how to deal with her illness the defendant was influenced by his peers to take drugs. The defendant says he first took cocaine two weeks before his arrest and has not taken drugs since his arrest.
DATC report
7. By virtue of section 54A of the Dangerous Drugs Ordinance no sentence of imprisonment may be imposed for the offence of possession of a dangerous drug without first considering the suitability for cure and rehabilitation.
8. The report reveals that due to lack of interest the defendant dropped out of school after completing Form 4. Since leaving school the defendant has worked as cook and on construction sites but has not held a stable job. Under the influence of dubious peers, the defendant was tempted to abuse cocaine.
9. The defendant was said to be cooperative in revealing his drug taking experience and showed some sense of remorse towards his misdeeds. The defendant promised to lead a drug free life in the future.
10. The defendant has never been sentenced to DATC or joined any voluntary drug treatment programme. The Medical Officer is of the opinion the defendant is not a drug dependant and therefore not considered suitable for admission to a Drug Addiction Treatment Centre.
Possession of cocaine
11. In HKSAR v Mok Cho Tik the Court of Appeal held that the starting point for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months[2]. Miss lam refers me to the case of HKSAR v Pham Thi Nga where the court of Appeal held that appropriate starting point for possession of 6.51 grammes valued at $6,300 was 12 months’ imprisonment[3].
12. I note the defendant told the police he paid $6,500 for the cocaine, some of which he had consumed prior to his arrest[4]. Taking into account the defendant has a clear record, I am satisfied the appropriate starting point for 4.09 grammes of cocaine is also 12 months’ imprisonment.
Latent risk
13. The defendant told the police that he only knew one person at the birthday party; he told no one he had drugs with him and did not give the drugs to anyone else. The bags containing traces of drugs had been consumed by him in the toilet of the karaoke prior to his arrest[5].
14. Miss Lam submits that there is no latent risk. As indicated in court I do not accept that there was no latent risk. The defendant elects not to give evidence challenging that there is a risk of dissemination[6].
15. Taking into account that the defendant was arrested in a karaoke with twenty-three packets of cocaine and six packets containing traces of cocaine and that the defendant, according to what he told the police had only consumed cocaine once or twice for 1-2 weeks[7],I am satisfied there was a risk that the drugs could have fallen into other hands. In the circumstances I enhance the starting point by 6 months to 1 year and 6 months’ imprisonment.
16. Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 12 months’ imprisonment.
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(D. J. DUFTON) |
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District Judge
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[1] Cap 134.
[2] [2001] 1 HKC 261.
[3] CACC 224/2011.
[4] See § b & g of the summary of facts admitted by the defendant.
[5] See §6 e-i of the summary of facts admitted by the defendant.
[6] See HKSAR v Minney, John Edwin [2011] 3 HKLRD 556 at §31 (1).
[7] See §6 j of the summary of facts admitted by the defendant.
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