HKSAR v. CHU KIN SHAN CHRISTOPHER

DCCC497/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 497 OF 2013

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REASONS FOR SENTENCE
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1. The defendant faced one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded not guilty to the charge, but admitted possession of the drugs in question. His plea to the lesser offence was not accepted by the prosecution.

2. At the end of the trial, I found the defendant not guilty of the trafficking charge.  However, on the basis of his plea and the facts that he had admitted and/or found to have been proved beyond reasonable doubt at the trial, I convicted the defendant of the offence of possession of the dangerous drug in question, contrary to section 8(1) and (2) of the same Ordinance.

Facts

3. About 7:48 p.m. on 21 March 2013, while the defendant was walking in direction of Waldorf Shopping Centre at No. 1 Tuen Lee Street, Tuen Mun from Tuen Mun Town Plaza, he was intercepted by two plain-clothes police officers outside the Waldorf Shopping Centre.  The officers found the defendant acting suspiciously because the defendant kept on looking around and pressing his hand against his left front trouser pocket whilst he was walking.  Since the officers suspected that the defendant was in possession of dangerous drugs, one of them conducted a search on him.  From the left front trouser pocket of the defendant, the officer found 3 transparent re-sealable plastic bags containing what were subsequently confirmed by the Government chemist to be 34.32 grammes of a powder containing 27.17 grammes of ketamine.

4. There was then an episode concerning the arrest of the defendant which was not relevant to the charge or to the sentence to be imposed on him.  Suffice to say that after the defendant had been arrested and cautioned, he said that he purchased the ketamine in question for his own consumption.

5. In a subsequent video recorded interview which he adopted as part of his evidence at trial, the defendant admitted that he purchased the ketamine in question shortly after 6 p.m. on the day of his arrest in Tuen Mun Town Plaza from a person called Ah Kit at the price of $1,800 for his own consumption.  By that time, he had already abused ketamine for 5 years.  He took ketamine by way of sniffing with his nose.  He consumed ketamine 2 to 3 times a week and 3 to 4 grammes each time at a cost of $200 to $300. 

6. The ketamine in question had a street level value of $4,084 at the time of the offence.

Criminal record

7. The defendant has 4 previous convictions involving 5 charges, 3 of them were for the offence of possession of dangerous drugs.  For the first conviction, he was convicted of two charges of theft and was put on probation for 12 months.  He then committed his first drug offence, and breached his probation order.  He was put on probation again for 18 months in October 2010 (Case No. TMCC2850/2010), but he breached that probation order which was eventually extended to 27 months in April 2012.  He then committed his second and third drug offences and was sentenced to a drug addiction treatment centre (DATC) on each occasion in June 2012 and July 2012 respectively (TMCC1488/2012 & TMCC1777/2012).  For all his drug offences, he was found in possession of ketamine. He was released from DATC on 5 March 2013.  He then committed the present offence on 21 March 2013.

Personal and family background

8. The defendant was born on 9 September 1993 in Hong Kong.  He is now 21 years old. He was 19 years old at the time of the offence.  He is single.  His father is a Chinese and his mother is a Bolivian.  His parents divorced in 2000 with the custody of the defendant and his elder sister given to his mother.  His mother remarried subsequently.  His step father is also a Bolivian.  The defendant is now living with his mother, his step father, and 3 younger step brothers aged between 11 and 14.  His elder sister now aged 27 has married and migrated to the United States.  The defendant still maintains contact with his natural father.  He studied up to Form 2.  He had worked as a part time manual labourer before.  From December 2014 onwards, he assists his step father who operates a football school and earns $80 per hour with unsteady working pattern.  His girlfriend is 20 years old.  She has an 8 months’ old son who is not the son of the defendant.

Pre-sentencing report

9. According to the enquiries made by the probation officer, the defendant was a hot-tempered youngster with fair emotional control and had history of nightmares at the age of 9.  He had to receive regular psychiatric treatments from government clinics due to his self-destructing behaviour.  Since the age of 15, the defendant had been mingled with undesirable peers and started taking drugs including not only ketamine but also cannabis, cocaine, ice and cough syrup. His drug addiction led to his suffering from stomach ache, urethritis, auditory hallucination and insomnia.  The previous probation orders were ineffective in preventing the defendant from committing further offences.

10. The defendant informed the probation officer that he had stayed away from drugs for over a year after his discharge from prison.  He considered it unnecessary for him to receive any residential or voluntary drug treatment services.  He planned to work part time in his step-father’s football school, and was willing to secure a full time job after explanation by probation officer.  He had also registered with the Tung Wah Group of Hospitals Cross Centre for drug counselling services but he did so only upon the request of his mother.  His mother and step father showed concern to the defendant but did not know how to assist him even though they were ready to do so whenever necessary.

11. During the adjournment, 7 urine tests had been conducted on the defendant.  The results of only 3 of the tests were available.  All of them showed that the defendant had not taken any drug.

12. The probation officer was of the view that the defendant had been put on probation twice but they were ineffective in rectifying his misbehaviour, and preventing him from relapsing to drugs.  His parents were also unable to guide him back to the right track.  The probation officer therefore did not recommend putting the defendant on probation.  In light of the defendant’s drug history, he did not recommend putting the defendant on community service order as well.

Mitigation

13. Mr. William Allan submitted that the defendant had gone through two trials for this offence.  He pointed out that the defendant was convicted of the trafficking charge in the first trial and was sentenced to serve a term of 4 years and 3 months on 8 August 2013, and that the defendant had served that sentence for 20 months before he was released from custody following his successful appeal to overturn his conviction in the Court of Appeal with a retrial ordered.  He stressed that the defendant was now convicted of an offence that he had pleaded guilty in as early as August 2013, and that the defendant had been subject to mental torture for the past two years.  He submitted that while the defendant had been a drug abuser before, he had already turned a new leaf and was now clear of this illicit habit as confirmed by the series of negative urine tests, the first of which was conducted on the day after he was found not guilty of the trafficking charge.  Mr. Allan submitted that the defendant was no longer a reckless teenager as before and that he had learned a lesson whilst he was in prison.  The defendant would treasure the chance given to him by the court.  He was willing to serve probation or perform community service.  He had promised his mother, step father and biological father that he would not commit offence again, and all of them fully supported him.

Reasons for sentence

14. This was the 4^th time the defendant had committed a drug offence.  Not only the defendant had a poor criminal record as far as drug offences were concerned, there were also two aggravating factors in this case.  First, the quantity of drugs was large.  The weight of ketamine was over 27 grammes.  In sentencing the defendant, this Court was entitled to take into account the latent risk that this quantity of drugs could fall into the hands of others. In my view, the risk was quite substantial bearing in mind that the defendant had been mixing with undesirable peers, that he was at most doing some part time job for his step father earning small sums of money at the material times, and that he had a drug habit or temptation to satisfy but he could not get money from his parents to satisfy his illicit needs.  Second, he committed the present offence only 16 days after he had been discharged from a drug addiction treatment centre.  For these reasons, it appeared that it would not be wrong for this Court to take a punitive and deterrent approach in sentencing him.  To achieve this end, this Court would have to consider imposing a custodial sentence.

15. On the other hand, I had to take into account the defendant’s guilty plea and the fact that he had spent some 20 months inside prison as a result of his conviction of the trafficking charge in the first trial.  In that trial, he was convicted of trafficking in dangerous drugs, but in the re-trial before me, he was only convicted of simple possession.

16. In my view, the defendant had been a reckless youth who just indulged himself in his drug addiction in the past.  The fact that he committed this offence only 16 days after he had been discharged from a drug addiction treatment centre spoke for itself.  However, he was 19 years old at the time of this offence. Since then, he had languished in prison for some 20 months that might serve as a wake-up call to him and caused him to think twice before he would commit any further offence.  After all, he is now 21 years old and presumably he is a more mature person.  In any event, he said that he had stayed away from drugs for the past year since his release from jail.  In light of the negative urine tests results, I have no reason to disbelieve him.  It therefore appears that this defendant has made some positive changes in his life.  He has also demonstrated that he is able to exercise some degree of self-control by staying away from drugs for some time, and hence he may not be the same reckless youth as before.  For these reasons, it appears that it is not impossible to consider imposing a non-custodial sentence.

17. If a non-custodial sentence is to be considered, it appears to me that he is not a suitable person to perform a community service order.  Candidates suitable for community service orders are usually those who have already secured a stable living pattern who do not require much counselling. The defendant in my view is not within this category.  He has not yet secured a full time employment.  He has not yet gone through counselling services provided by the Tung Wah Group of Hospitals Cross Centre, and it is not known whether he will on his own volition attend such counselling in the absence of any form of compulsion. 

18. On the other hand, suitable guidance and supervision from probation officer may be effective in rehabilitating the defendant and teaching him not to commit the same and indeed any offence again.  In addition, close monitoring of him by this court through the probation officer will serve as a reminder to the defendant that if he misbehaves, or breaches any requirement of the probation order, or commits any offence again during the currency of the probation order, he will be sentenced by this Court again.  It is hoped that this threat of sanction will serve as a reminder to the defendant that he has to really put in his effort to turn a new leaf in his life and not to commit offence again.

19. For the reasons that I have explained, I sentence the defendant to serve a term of probation for 18 months with the special conditions that he shall:

(1) work and reside as directed by the supervising probation officer;

(2) abstain from all kinds of illicit dangerous drugs and substance;

(3) submit to random urine tests as directed by supervising probation officer;

(4) sever association with undesirable peers; and

(5) attend such group or programme for rehabilitation as directed by supervising probation officer.