HKSAR v. CHOI KIN MAN

DCCC 204/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 204 OF 2013

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Reasons for Sentence

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1.  The defendant before me now is the 2nd defendant of the trial. He was charged with trafficking dangerous drugs to which he pleaded not guilty but he pleaded guilty to simple possession. Prosecution did not accept that plea and proceeded with the trial. After the trial, I convicted the defendant of possession of dangerous drugs, contrary to section 8 of the Dangerous Drugs Ordinance, Cap. 134.

2.  I gave full reasons in my Verdict and do not intend to repeat them.

3.  The defendant was caught entering premises with 18.83 grammes of a powder containing 14.90 grammes of ketamine.  The 3rd defendant was in the same premises.  I have found after trial the prosecution proved that the 3rd defendant had handed the 1st defendant a packet of ketamine.  Both the 1st and the 3rd defendant were ultimately convicted of trafficking dangerous drugs.  The prosecution could not prove beyond reasonable doubt the 2nd defendant was trafficking hence his conviction for simple possession.

4.  The 2nd defendant told the police that he had bought the dangerous drugs for his own consumption.  He was on his way home when he stopped to visit the 3rd defendant.  The purpose of that visit was to repay a gambling debt to the 3rd defendant.  After trial, I called for a Drug Addiction Treatment Centre Report.  The defendant was considered not to be a drug addict.  I will not repeat the details of the report but I have taken them into consideration.

5.  Defendant is a 34 year old man with two children.  His eldest, a 13 year old son, is from his first marriage.  The defendant and his ex-wife are on good terms.  The defendant also has a 6 year old daughter from a second marriage but his second wife sadly died not long after childbirth.  The defendant was so affected by her death that he started to take ketamine.  This led to his only criminal conviction of possession of dangerous drugs in 2008 for which he was fined $1,000.  This conviction did not stop the defendant taking drugs, nor did he stop to think of his children.  I understand the defendant’s grief but the defendant was very selfish not to take responsibility for the children’s welfare.  His daughter lost her mother as well.  She is an entirely innocent person.  Defendant has to be both a mother and a father to this daughter, not a drug addict.  Parents who are drug addicts are absolutely useless to their children and the children become victims.

6.  The defendant has written a letter in mitigation and in it he says he wants to be a responsible father.  I do hope that the defendant means what he says.  His daughter is still very young as is his son. They both need him for many years to come.  If he is in prison he cannot be there for them.

7.  I have considered mitigation, the letter the defendant has written and I have considered the quantity of dangerous drugs. Defence counsel has submitted a very succinct submission on the latent risk factor.  The relevant factors I will take into account are that the defendant has no previous convictions for trafficking dangerous drugs.  The defendant was essentially on the way home with the dangerous drugs.  The dangerous drugs would last him approximately one week which would mean there would not be a lot to share about.  The defendant was fully employed with a good income which means he would not need to sell part of his dangerous drugs to fund his habit. With this quantity I find there is a latent risk but not a great one.  

8.  The defendant, please stand up.  I will, after considering all the factors I have referred to, for the offence of possession of dangerous drugs I take a starting point of 15 months.  I will, according to the three-step approach of the authority of HKSAR v Wan Sheung Sum [2001] 1 HKLRD 405, I increase that starting point to reflect the small latent risk by 3 months.  That would mean an overall starting point of 18 months.

9.  The defendant pleaded guilty, indicated his plea to possession of dangerous drugs from the outset, so the defendant will be entitled to a discount of one-third.  After this discount of 6 months, the defendant is sentenced to 12 months’ imprisonment for possession of dangerous drugs, contrary to section 8.