HKSAR v. LEUNG KA KI

DCCC 664/2020

[2021] HKDC 1556

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 664 OF 2020

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REASONS FOR SENTENCE

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1.  D3 pleads guilty to one charge of possession of 1.13 grammes of a solid containing 0.77 gramme of cocaine, contrary to section 8 of the Dangerous Drugs Ordinance[1] (charge 2).

2.  Full particulars of the offence are set out in the summary of facts admitted by D3 on 19 November 2021.  In summary at around 9:28 p.m. on 10 March 2020 the police intercepted D3 as he was about to get on a private car which had just stopped outside the rubbish collection centre in Po Tat Estate, Sau Mau Ping. The police found from the left front pocket of D3’s trousers a transparent re-sealable plastic bag containing three smaller transparent re-sealable plastic bags containing the cocaine. 

3.  Under caution D3 stated that the three packets of cocaine were for his self-consumption.

Mitigation

4.  In passing sentence, I have carefully considered the written and oral submission of Ms Lai, including that D3, who is 28, single, lives with his family and works as a sales associate in a pharmacy, began taking cocaine in 2020 on the advice of friends as a form of stress relief[2].

5.  I take into account D3 has no previous convictions for drug offences.

6.  I have read D3’s mitigation letter in which he explains how he made what he describes as a mistake and that since his arrest he has cut off all forms of contact with his former negative friends and worked for the same pharmacy company.  D3 asks for leniency so he can look after his mother and younger brother.

7.  I have also read the letters written by D3’s father and his current employer.  The father promises to pay more attention to his son in the future and asks for a lenient sentence.  The employer states that D3 has performed very well at work; that it is rare to find new employees willing to enter the profession and perform so well; he will continue to employ D3 and asks the court to impose a lenient sentence. 

Possession of cocaine

8.  In HKSAR v Mok Cho Tik the Court of Appeal said[3]:

“We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant.”

Drug Addiction Treatment Centre report

9.  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.

10.  The report details D3’s background and addiction history.  D3 claimed that he was lured to abuse cocaine in March 2020 out of curiosity; that he had only taken cocaine a few times and that the last time he took cocaine was in April 2020 which I note was after his arrest.  In court today D3 claims that he last took cocaine on the day of his arrest and that he told the assessment officer that he last took cocaine around March /April 2020.

11.  D3 has never been sentenced to a Drug Addiction Treatment Centre or joined any voluntary drug treatment or attended methadone treatment. 

12.  The assessment officer states that D3 was cooperative in disclosing his drug taking experience and verbalized his remorse.  D3 reiterated he had remained drug free since April 2020 and promised he would stay away from drugs in the future.  D3 said that it was not necessary for the assessment officer to contact his family.

13.  D3 expressed he did not want to be sentenced to a Drug Addiction Treatment Centre.  Based on medical examination, clinical observation and the facts available, the medical officer is of the opinion that the defendant is not a drug dependant.  The defendant is therefore considered not suitable for admission to a Drug Addiction Treatment Centre.

Sentence

14.  Ms Lai refers the court to two sentence cases involving 0.89 gramme of cocaine and 1.59 grammes of cocaine where starting points of 6 months and 9 months’ imprisonment were adopted[4].

15.  Had this charge stood alone the case would have been dealt with in the magistracy. Taking into account the small quantity of cocaine, 0.77 gramme.  I am satisfied a starting point of 6 months’ imprisonment   is appropriate. 

16.  Although D3 was arrested on the street in possession of three packets of cocaine, taking into account the small quantity of cocaine, I am prepared to accept the submission that the cocaine was for D3’s own consumption and not enhance the starting point by reason of the latent risk factor[5].

17.  Giving D3 full credit for his plea of guilty reduces the sentence to 4 months’ imprisonment.

Suspended Sentence

18.  Ms Lai submits that by reason of D3 having no previous convictions for drug offences; has not reoffended during bail; has stayed clear of drugs and negative associations and is currently in full time employment, the circumstances warrant suspension of the sentence[6]. 

19.  In support Ms Lai refers the court to the sentence imposed in HKSAR v Sit Yan Si where D2 was given a suspended sentence for possession of a small amount of cocaine and ice.

20.  Considering that D2 in that case had previous convictions for drug offences, including trafficking in dangerous drugs and had previously been given a suspended sentence and on at least two occasions sentenced to the DATC, the sentence in my view can be regarded as lenient, if not extremely lenient.

21.  I find no grounds to suspend the sentence.  D3 is convicted and sentenced to 4 months’ imprisonment.