HKSAR v. SHA CHI NGO

DCCC 827/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 827 OF 2016

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REASONS FOR SENTENCE

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Charge

1.  Defendant was originally charged with trafficking in dangerous drugs.  Later the charge was amended to one of simple possession.  The drugs involved were 21.1 grammes of a powder containing 10.6 grammes of ketamine.  Defendant pleads guilty to simple possession of dangerous drugs. 

Facts

2.  At about 6 pm on 15 June 2016, police found defendant sitting at the driver’s seat of a private car in Tsuen Wan area.  They found in defendant’s trousers’ pocket two bags, each containing four plastic bags of ketamine.  The total amount of drugs involved were 21.1 grammes of a mixture containing 10.6 grammes of ketamine.  The estimated value of the drugs was $4,000 odd.

3.  Defendant told police that he bought the drugs from someone for $1,200 in Sha Tin that afternoon at around 4 pm.  The drugs were for his own consumption.  He said he would consume two to three packets per day by inhaling method.  He told police that he was to have meal in Tsuen Wan while he lived in Ma On Shan.  Defendant also said he was a crane operator earning around $20,000 per month. 

Record

4.  Defendant is aged 35.  Between 2001 and 2009, he had been in court five times.  Among his previous convictions, there was one for possessing dangerous drugs in 2008 and one for possessing Part I poison in 2009.

Mitigation

5.  Counsel says defendant is single, living with his parents and younger sister.  He is the main breadwinner of the family.  Counsel says defendant has been a crane operator for over 10 years. 

6.  Counsel points out that defendant had been detained since June this year after being arrested.  It has been about 6 months by now, so defendant should be free from any drugs addiction.  On the previous occasion, counsel urged me to impose a suspended sentence on defendant. 

7.  It is a matter of fact that defendant has been detained for about 6 months by now under the original charge of trafficking dangerous drugs.  Now he pleads guilty to simple possession.  Still, considering the quantity of drugs involved, speaking about purity, it is 10.6 grammes of ketamine. And given the fact that defendant had one previous conviction similar, immediate imprisonment is inevitable.  Suspended sentence is out of question.  I am obliged by the law to call for a DATC report before sentence in such circumstances.

DATC report

8.  The report details on defendant’s background.  It says defendant had got into substance abuse problem since 1997, on and off.  He had no insight into his problem.  He was once evasive to the officer by saying that the drugs belonged to his friends.  But counsel in court clarifies for him that defendant would admit possession of the drugs for himself. 

9.  The medical officer of DACT opines that defendant is now no longer drug dependent.  He does not need to go into DATC. 

Latent risk

10.  Defence counsel says the drugs involved were only 10.6 grammes of ketamine.  There is no evidence that defendant had been involved in trafficking.  The evidence reveals that defendant had a stable job with certain income.  There was no indication that he had to sell drugs for a living. Counsel says in defendant’s case the latent risk of dissemination with such quantity of drugs was negligible or small. 

11.  Prosecutor on the other hand points out that the drugs were 21.1 grammes of a mixture containing 10.6 grammes of ketamine contained in eight bags. Defendant told police that he bought them at around 4 pm that afternoon in Sha Tin.  Two hours later, he still had those drugs on his person.  He was found driving a car and he was located in Tsuen Wan, far away from his home in Ma On Shan.  Prosecutor says the court is entitled to find that there is a certain degree of latent risk with defendant’s possession of the said quantity of drugs. 

Sentence

12.  Defendant possessed a total of eight bags of ketamine.  It was 21.1 grammes of a mixture containing 10.6 grammes of ketamine.

13.  Defendant had been working as a crane operator earning more than $20,000 per month.  Probably he was not pressed to sell drugs for a living.  However, he had been a drug abuser for quite some time.  As we all know, addicts often would meet people who were also in need of drugs.  After defendant had bought the drugs that afternoon, he did not go home quickly to put the drugs in a safe place purely for his own use. He had those eight bags of drugs with him travelling and he was finally found in Tsuen Wan.  I find that there is a risk of dissemination albeit it is not a very high one. 

14.  Bearing in mind the quantity of drugs involved, counsel’s mitigation and defendant’s previous record(I note that he had no trafficking convictions before but he did have one previous conviction of possessing dangerous drugs), I adopt 12 months’ imprisonment as the fundamental starting point.  As I find in this case there is a certain degree of latent risk of dissemination, I would enhance the starting point by 25 per cent, ie 3 months, to 15 months. Defendant pleads guilty to the charge, he is entitled to one-third discount, therefore, I finally sentence him to 10 months’ imprisonment.