HKSAR v. CHAN MANDY MARCO

DCCC554/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 554 OF 2010

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Reasons for Sentence

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1.  The Defendant was convicted upon his guilty plea of one charge of possession of dangerous drug.

2.  In sentencing I have considered the whole circumstances of the case, including its nature and facts, nature and quantity of the dangerous drugs concerned, background of the defendant, DATC report and mitigation put forward on the defendant’s behalf.

3.  The facts of the case are simple.  At about 1.23 pm, on 25 March 2010, the defendant was intercepted on the street by police officers.  Upon search, a paper packet of suspected dangerous drug was found inside his jeans pocket.  The defendant was arrested for the offence of possession of dangerous drug.  Under caution he admitted the packet of ketamine was for his own consumption and asked the police officer to let him go.

4.  The police officers took him back to the police station.  There, upon further search, eight plastic bags containing suspected “ice” and a paper packet containing suspected ketamine were found.  Under caution the defendant said the “ice” and ketamine were bought by him for his own consumption. 

5.  The first item found on him was later confirmed to be 0.99 grammes of powder containing 0.01 grammes of ketamine.  The other items found were later confirmed to be 0.34 grammes of powder containing 0.22 grammes of ketamine and 10.09 grammes of crystalline solid containing 9.57 grammes of methamphetamine hydrochloride, commonly known as “ice”.  The retain value in March 2010 for ketamine is $148 per gram, and for “ice” $6,538 per gram.

6.  The defendant is now 31 years of age.  He is married, and his wife is living in the mainland.  He is living with his mother and sister.  He received education up to Form 3, and since leaving school he has been working as a transportation worker, earning about $10,000 per month. He sent about $3,000 to his wife to support her living.

7.  I was told that the defendant has been taking drugs for about five years and spent a few thousand dollars on drugs each month.  He has a long criminal conviction record.  In 1994, when he was about 14 years old, he committed four offences, namely two of criminal damage, one of theft and one of indecent assault.  For these offences a community service order and probation orders were imposed on him.

8.  In 1995 he was further convicted of an offence of AOABH and was sent to DC for training.  In 1997, for the offences of unlawful assembly and being a member of a triad society, again a DC order was made.  In 1999 he committed a more serious offence of assault with intent to rob and was sentenced to 2 years' imprisonment.  In 2009, for two copyrights offences, he was sentenced to a total of 3 months' imprisonment.  In 2006 he began to be convicted of the offence of possession of dangerous drug. For this offence he was fined in 2006, imprisoned for 3 months in 2008, and imprisoned for 8 months on 12 October 2010.  He is still serving this last sentence. 

9.  Before sentencing, pursuant to section 54A of the Dangerous Drugs Ordinance, I have considered a DATC report.  The report confirms the defendant’s habit of taking dangerous drug.  However, the report also states that, based on medical examination, clinical observation and information available, the defendant is not a drug dependent and treatment in DATC is therefore not necessary.

10.  In all the circumstances I am of the view that an imprisonment term is warranted.  I have considered cases such as HKSAR v Mok Cho Tik [2001] 1 HKC 261 and HSAR v Jarhia Kuldeep Singh CACC96/2006. 

11.  Having regard to the circumstances of the present case, I am of the view that the mere quantity of the “ice” the defendant possessed calls for a sentence with a starting point of 15 months. 

12.  There are other matters I have to take into account.  In my judgment, the latent risk is high.  Besides, the court has to take into account the fact that the defendant was also in possession of another dangerous drug, ketamine, though the quantity was quite small. In addition, the defendant had three previous convictions of possession of dangerous drug.  He committed the present offence whilst he was on bail for the case of possession of dangerous drug, for which he is now serving an 8 months’ imprisonment term.

13.  For all these factors I am of the view that the starting point should be raised by 12 months.  By reasons of the matters aforesaid, I adopt an ultimate starting point of 27 months. 

14.  The defendant pleaded guilty.  He is entitled to a one-third discount.  Having considered the whole circumstances, including mitigation, I am of the view that this is the extent of discount the defendant is entitled to in this case.  Accordingly, I sentence him to 18 months' imprisonment. 

15.  The defendant is now serving an imprisonment term of 8 months for another case of KCCC1950/2010, also for the offence of possession of dangerous drug.  I have considered the charge and facts of that case.  In that case the defendant was stopped on the street.  In his possession was a total of 23.75 grammes of powder containing 20.41 grammes of ketamine. The nature of that case is the same with the present one.  However, it was committed on a separate occasion.  The dangerous drug possessed by the defendant on that previous occasion was primarily of a different nature.

16.  Having considered totality, I order 4 months of the present sentence to run concurrently with the sentence imposed in KCCC1950/2010, and the rest of the sentence to run consecutively.  For the two cases, defendant is to serve a total imprisonment term of 22 months.