HKSAR v. CHAN HOI SHAN

DCCC369/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 369 OF 2015

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REASONS FOR SENTENCE

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1.  The defendant was convicted upon his own plea of one charge of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Chapter 134, Laws of Hong Kong.

Facts

2.  On 29 December 2014, a police constable stopped and searched the defendant outside Cheung Hong Estate Commercial Centre No. 2 in Tsing Yi, and found one packet of suspected ketamine in the left pocket of the defendant’s jacket.  Upon being questioned, the defendant stated that the suspected drug was ice, and that he bought it for his own consumption.

3.  In the subsequent video-recorded interview, the defendant stated that the suspected drug was actually ketamine, and that he had mistakenly said that it was ice at the time of arrest because he was nervous at that time.  He further stated that he bought one ounce of ketamine in Kai Chung from a person called Ah Heng at the price of $1,400.  He said that he came to know Ah Heng through his friend, and that had no means to contact Ah Heng.  He said that he consumed ketamine once every 3 days, and that the 28 grammes of ketamine (one ounce) would last him for about one week or 10 days.

4.  According to the Government Chemist Certificate, the drug found in the defendant’s possession was 26.8 grammes of a powder containing 21.6 grammes of ketamine.

5.  The street value of the ketamine in question was $3,830.

Criminal record

6.  The defendant has two previous convictions involving two offences that were committed by him in 2004 and 2005 respectively.  He has no prior conviction for any drug-related offence.

Personal and family background

7.  The defendant is now 28 years old.  He was born in the mainland.  His mother and his father passed away when he was aged 7 and 18 respectively.  He received his education in Hong Kong, but he has not completed his Form 3 education.  He is single.  His only relative is a younger brother who is now 26 years old.  His brother migrated to Columbia in 2012, but returned to live with him in 2013. The defendant has worked in the construction field and as a transportation worker.  He had worked as a full time transportation worker for 4 to 5 years, but changed to work on a casual basis two months ago.  He now earns $600 a day or $12,000 a month.  He has to pay for the household expenses and rent for both himself and his younger brother.

Pre-sentencing reports

8.  Enquiries made by probation officer revealed that the defendant had a good family relationship, and that he and his younger brother supported one another mutually after both parents had passed away. 

9.  According to the drug addiction treatment centre report, the defendant reported to the intake officer that he had abused both ketamine and cocaine under the influence of undesirable peers.  Mr. Shah, learned counsel for the defendant, informed me upon instructions that the defendant started to abuse ketamine in 2008 instead of 2005 as stated in the report.  The defendant had also reported to the intake officer that he last took cocaine on 10 August 2015, and ketamine on 16 August 2015, which was one day before his last appearance in Court.  A medical officer confirmed that the defendant was a drug dependant, and the Commissioner of Correctional Services considered him to be suitable for treatment in a drug addiction treatment centre.

Mitigation

10.  According to Mr. Shah, the defendant and his younger brother became orphans after their parents had passed away one after the other although a paternal aunt had taken care of them for a brief period of time.  The defendant then stopped schooling when his father passed away because he had to join the labour force.  He was a transportation worker.  However, he can only work on a casual basis now for two reasons.  First, his younger brother is suffering from long-termed depression. Hence, he has to remind his brother to take medication, and to attend to the need of his brother if he is to be hospitalized because of his depression, and his younger brother had in fact been hospitalized on a few occasions before. Second, the defendant’s health has been seriously affected by his lengthy addiction to ketamine, and he now has urinary and stomach problems.  Mr. Shah produced a letter dated 30 July 2015 from Yan Chai Hospital which showed that the defendant was treated in the Accident & Emergency Department of this Hospital on 4 July 2014 because of dysuria and increased urination frequency caused by ketamine addiction.  Mr. Shah stressed that the defendant knew that he had a problem and that he had tried to seek help, including approaching a private rehabilitation centre, but the cost of treatment of up to $3,000 a month was beyond his means.   Mr. Shah submitted that there were a number of mitigating factors in favour of the defendant, including his guilty plea, his sincere remorse, his frank admission at the time of video-recorded interview, and this was his first conviction for a drug offence.  Mr. Shah argued the defendant had been in a vicious cycle of drug abuse, and that he needed help in order to get out of that cycle.  He submitted that rehabilitation rather than punishment should be the aim of this sentencing exercise.  He also urged this Court to consider the impact of the defendant’s sentence on his younger brother.

11.  Mr. Shah further argued that there was no or only nominal latent risk that the ketamine in question might have fallen into the hands of other people on the ground that (1) the ketamine was exclusively for the defendant’s own use; (2) the defendant was undoubtedly a drug addict on long term basis as illustrated by the health symptoms as stated in medical report; (3) the defendant was a habitual user in that he used ketamine once every 3 days; (4) no previous record of trafficking; (5) the defendant was gainfully employed, and his employer was supportive of the defendant; (6) nothing indicative of trafficking was found by the police in the defendant’s home; (7) the value and the quantity of the drugs involved were consistent with self- use; and (8) the drugs had not been sub-divided into smaller packages.

12.  Mr. Shah referred me to three cases to assist me to arrive at the proper sentence. These cases included HKSAR v Wan Sheung-sum[1], HKSAR v Lee Chun-man[2], and HKSAR v Fung Ming-hin[3].

13.  According to Mr. Shah, the defendant is willing to undergo treatment in a drug addiction treatment centre, and the defendant’s employer is willing to employ him again after he has served his sentence. 

Reasons for sentence

14.  There is no sentencing tariff for the offence of possession of a dangerous drug.  The sentence to be imposed in each case depends entirely on its own facts.  

15.  In the present case, the defendant was found in possession of over 26 grammes of powder containing more than 21 grammes of ketamine.  The quantity of ketamine was not small, but in my view, it was not so substantial that this Court will have no alternative but to impose a term of imprisonment. 

16.  Mr. Shah submitted that the defendant needed help rather than punishment.  In light of the fact that the defendant was only convicted of simple possession of the ketamine, and that he has no drug conviction before, I agree that the rehabilitative approach should be adopted.  The remaining question is: what is the sentence to be imposed to achieve that purpose?

17.  In my view, it has to be recognized that the defendant has been addicted to ketamine for a long time.  He has also abused cocaine although for a shorter period of time.  It is also clear that he has not the motivation and/or the ability to stay away from drugs on his own.  He was arrested for this offence in December last year.  Yet, the arrest had no deterring effect on him.  He continued to abuse ketaimine and cocaine until the day before his last appearance in Court.  He is also susceptible to undesirable peers’ influence. His only family member is his younger brother.  However, it is quite clear that his younger brother does not have the ability to control or supervise him to ensure that he will stay away from drugs if he is allowed to remain in the open setting.  For these reasons, it is clear that the defendant must stay in a confined setting free from these negative factors if he is to have any chance to get rid of the addiction.

18.  In my view, detaining the defendant in a drug addiction treatment centre for compulsory treatment must be the most appropriate sentencing option.  He will of course lose his liberty, but the necessity to achieve his rehabilitation as well as the criminality of his offence, which involved possession of over 21 grammes of ketamine, justify taking away his liberty for some period of time.

19.  As I am of the view that the defendant should stay in a drug addiction treatment centre rather than serving a term of imprisonment, it will not be necessary for me to determine the issue of latent risk that the defendant might pass all or some of the ketamine in question to other persons.

20.  For these reasons, I sentence the defendant to be detained in a drug addiction treatment centre. 

21.  Furthermore, since the quantity of ketamine involved was large, and there was no extenuating circumstances surrounding the commission of the offence, I order that the defendant’s conviction of the offence of possession of a dangerous drug is to be recorded.

[1]  CACC438/1999.

[2]  CACC360/2014.

[3]  DCCC1030/2014.