HKSAR v. WONG KA CHUN

DCCC789/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO789 OF 2009

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Reasons for Sentence

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1.  D2 has been convicted of 3 charges of trafficking dangerous drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Facts of the Case

2.  The particulars of the charges:-

charges	Defts	dates	Places	Drugs
15	D1 and D2	31/3/2009	Inside a park of Boudary Street and Tai Kok Tsui Road	2 tablets0.02 grammes of midasolam
17	D1 and D2	2/4/2009	No.6 Nam Cheong Street, Sitting Out Area ( the park )	2 tablets0.02 grammes of midasolam
18	D1 and D2	2/4/2009	ditto	1 tablets0.01 grammes of midasolam

3.  Although charge 17 and 18 were 2 separate counts, but these 2 incidents took place almost at the same time at the same place when the drugs were sold to PW1 and 2 respectively.

The Prosecution case :-

4.  PW1 and 2 were deployed to pose as customers to purchase dangerous drugs in the operation.

Charge 15

5.  Outside the Methadone clinic in Shun Shui Po, D2 asked PW1 if he wanted to buy “stuff”. PW1 replied “yes”. D2 pointed to a direction and told PW1 and 2 to go straight and turned right into the park.

6.  They followed the direction and got into the park and saw D1 there who sold them respectively the dangerous drugs as mentioned in Charge 15.

Charge 17 and 18

7.  Inside the park, both D1 and 2 were sitting on a 3 seaters bench with the middle seat being vacant.

8.  D1 asked him if he wanted to buy drugs and asked him to take the middle seat.

9.  PW1 indicated that he wanted to purchase drugs. D2 pointed at D1 who sold the drugs to PW1 and 2 separately.

Criminal Record

10.  D2 has 9 previous convictions, 5 were related to dangerous drugs offences. He had been sentenced to DATC in 1990 and 1993.

Mitigations

11.  D2 is now 35 years old, he has a daughter of 13 years old and is living with his ex-wife. He is remarried and his wife lives in China.

12.  He is currently serving a DATC order since 30/12/2009.

13.  The Defence’s mitigation :- he is currently serving a DATC order and this is a case of entrapment.

DATC report

14.  This Court called for a DATC report and it recommended that the Defendant be continued to receive treatment.

15.  He also admitted to the Centre that he had committed the present offences.

Sentence

16.  I disagree with the Defence that this is a case of entrapment because PW1 and 2 did not take the initiative to talk to D2.

17.  The guidelines for midazolam and methaqualone were laid down in the case of R v Chan Chi Man ( 1987 ) HKLR 221 , for the amount under 500 grammes, the sentence was discretionary and for an amount over 500 grammes, the sentence should be in the range of 6 to 12 months.

18.  According to S.4 (1) and (2) of the DATC Ordinance,

(1)  where a person is found guilty of a relevant offence and the court is satisfied that in the circumstances of the case and having regard to his character and previous conduct it is in his interest and the public interest that he should undergo a period of care and rehabilitation in an addiction treatment centre, the court may, in lieu of imposing any other sentence, order that such person be detained in an addiction treatment centre.

(2)  …… not less than 2 months and not more than 12 months from the date of such order, as the Commissioner may determine, having regard to the health and progress made by such person and the likelihood of his remaining free from addiction to any dangerous drugs on his release, and shall then be released.

19.  According to the DATC reports, he is considered suitable to continue with the treatment programme in the Centre. He encountered no adjustment problem.

20.  The DATC report recommended the Defendant to continue his treatment in the DATC “ under a fresh Detention Order”.

21.  From S. 4(2), it means that treatment period may vary from 2 months to 12 months.

22.  In AG v Chan Tag Ming and other ( 1989 ) 2 HKLR 428, also quoted in Cross and Cheung , Sentencing in Hong Kong , at p.216 that the court received expert medical evidence concerning the treatment of drug addicts, that evidence demonstrated that in general, the patient received 5 to 6 months of treatment in the DATC and a further year under supervision before he can safely re-integrate into society. An addict whose treatment has failed on 2 to 3 occasions might still benefit from later treatment. Age is also a factor to be considered.

23.  In the present case, the Defendant is aged 35, the drugs concerned was midasolam and on each occasion was 2 tablets for charge 15 and 17, one tablet for charge 18, the total quantity for the three charges is 0.05 grammes. The overall sentence would be a short one.

24.  However, the Defendant is likely to receive treatment in the DATC for 5 to 6 months, or may be for a longer period, together with a one-year supervision.

25.  I also take into account of the quantity of the drugs for charge 15 and 17 was 0.02 grammes and charge 18 was 0.01 grammes of midasolam, for his benefit and the public interest, I consider that the DATC order is appropriate for all the 3 counts of trafficking of dangerous drugs.

26.  I, therefore, order the Defendant to DATC for charge 15, 17 and 18.