A DCCC805/2010 A
IN THE DISTRICT COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
CRIMINAL CASE NO. 805 OF 2010
C C
----------------------
D HKSAR D
v.
E E
Ng Sai-hung
F F
G ---------------------- G
Before: Deputy District Judge R. Chan
H Date: 19 October 2010 at 4.26 pm H
Present: Miss Lisa Go, PP, of the Department of Justice, for
I
HKSAR I
Mr Luke McGuinniety, instructed by Ivan Tang & Co.,
for the Defendant
J Offence: (1) and (2) Possession of a dangerous drug (管有危險藥 J
物)
K
(3) Possession of apparatus fit and intended for the K
inhalation of dangerous drugs (管有適合於及擬用作吸服危險藥
物的器具)
L L
M
--------------------- M
Reasons for Sentence
N N
---------------------
O O
1. The defendant pleaded guilty to two counts of
P possession of dangerous drugs and one count of possession of P
apparatus fit and intended for the inhalation of a dangerous
Q Q
drug.
R R
2. For the purposes of sentencing, the facts perhaps are
S not so important here. It is rather the quantity that matters S
most, in my view. The drug involved in this case consists of two
T types of dangerous drugs; cocaine and “Ice”. The quantity of T
cocaine found in this case is 0.59 grammes, whereas the quantity
U U
of “Ice” is 10.26 grammes.
CRT27/19.10.2010/ML 1 DCCC805/2010/Sentence
V V
A A
3. The defendant is a 42-year-old divorced man.
B B
4. If his most recent conviction is to be taken into
C C
account, he has been brought before court and convicted of
various offences on nine previous occasions. The majority of
D D
those convictions are drug-related.
E E
5. The defendant has been sentenced to DATC three times
F before. The most recent detention order was made in July this F
year, in relation to a case of simple possession of a dangerous
G G
drug in Shatin Magistracy. Therefore, at the moment, the
defendant is still undergoing treatment at the DATC in respect
H H
of that conviction.
I I
6. Prior to this latest detention order, the defendant
J was last sentenced to a DATC in 2007, but very unfortunately, J
the defendant did not seem to benefit from that detention order,
K and he relapsed and committed the present offences and the K
offence for which he was sentenced to DATC in Shatin Court as
L L
well.
M M
7. It is obvious that the defendant is a drug dependent,
N and he has been a drug dependent for some considerable time. N
O 8. Mr McGuinniety, counsel for the defendant, in his O
mitigations, says the defendant, in fact, is not as bad as his
P P
record suggests. Clearly, he has a long drug problem and that is
the reason, perhaps a major reason, why he has been in trouble
Q Q
with the law in the past, but the defendant is not a person
R without passion. R
S 9. Mr McGuinniety submits and he has evidence to prove S
that, the defendant has been making contribution to World
T T
Vision, and for the last four years, the total amount of
contribution made by the defendant well exceeded $11,000.
U U
CRT27/19.10.2010/ML 2 DCCC805/2010/Sentence
V V
A A
10. Mr McGuinniety says not only this is not common for a
B drug dependent, it is not common for a person with long criminal B
history. Perhaps that can be seen as an indication that the
C C
defendant is not irredeemable.
D D
11. Mr McGuinniety further says that the defendant, in
E fact, has been struggling very hard in the past years to rid E
himself of the drug habit. Unfortunately, his determination to
F quit the habit did not seem to be enough. F
G G
12. Now that the defendant is at the DATC undergoing
treatment, the defendant seems to be doing well, and therefore,
H H
Mr McGuinniety urges this court to consider another DATC order,
I
because this is the most beneficial sentence, both to the I
defendant and the society as well.
J J
13. I have carefully considered submissions made by
K Mr McGuinniety on the defendant’s behalf. K
L L
14. I have carefully considered what the DATC report says
about the defendant.
M M
N 15. I am aware that the drug involved in this case is not N
of insignificant amount. Taking the quantity of “Ice” alone, the
O quantity involved is some 10.29 grammes, which is quite O
substantial for simple possession offence.
P P
16. If the defendant is charged with trafficking in a
Q Q
dangerous drug involving this quantity of “Ice”, he is looking
R at a substantial period of imprisonment. However, he was not R
charged with trafficking.
S S
17. I do not know exactly how the prosecution come to a
T T
decision to charge this defendant with simple possession only,
but on all the available information, one can easily come to a
U U
CRT27/19.10.2010/ML 3 DCCC805/2010/Sentence
V V
A reasonable conclusion that, perhaps, the defendant’s previous A
record, plus the fact that he was found with various apparatus
B for inhalation of dangerous drugs, supports the view that he is B
a drug abuser, rather than a drug trafficker.
C C
18. There is more evidence to support the same view.
D D
If one looks at the defendant’s record, not only that he has
E never been found guilty of any trafficking offences, there is no E
indication whatsoever that the defendant has been involved in
F any kind of illegal activities in order to fund his drug F
addiction. This is significant, because if there was such
G G
indication, perhaps this court would not be inclined to consider
any other sentencing option other than imprisonment.
H H
I
19. What it boils down to is this: the defendant is a drug I
abuser, and that is it.
J J
20. The defendant is now undergoing treatment at the DATC.
K The DATC report suggests that he is doing well there, and K
therefore, the chances of his being able to quit drug addiction
L L
are there.
M M
21. In my view, if the defendant is able to stay drug-
N free, not only that the defendant may benefit from it, the N
society as a whole may also benefit. If the defendant is able to
O resist the temptation of drug abuse, he will not be charged with O
any drug offence again. If he is able to stay drug-free, then
P P
there is no more need for him to buy dangerous drugs from other
drug pushers. This will benefit the society.
Q Q
R 22. I am aware that the period of detention at the DATC R
varies from 2 to 12 months. It is within the sole discretion of
S the Commissioner of Correctional Services to decide when is the S
best time to discharge an inmate from the DATC.
T T
U U
CRT27/19.10.2010/ML 4 DCCC805/2010/Sentence
V V
A 23. The defendant has been at the DATC since July this A
year. Therefore, he has, in effect, spent about three months at
B the DATC up to this moment. B
C C
24. According to section 6A of the Drug Addiction
Treatment Centre Ordinance, Cap.244, if a fresh detention order
D D
is made in respect of a person who is already undergoing a
E period of treatment at the DATC, the first detention order shall E
cease to have effect.
F F
25. What it means is that if I make a new detention order
G G
in respect of the defendant, the existing detention order shall
cease to take effect immediately, and the defendant, under the
H H
new order, may well have to face up to 12 months’ detention or
I
treatment at the DATC. I
J 26. This, in my view, may be able to remove concern that J
if a new detention order is made in respect of this defendant,
K this defendant may only have to serve the remainder of the first K
order, which could be significantly shorter than he would have
L L
got under the new order.
M M
27. Having concluded that the defendant is a drug abuser,
N and that the defendant stands a good chance of rehabilitation at N
the DATC, and after taking into account all the relevant
O circumstances, I am prepared to say that the present case, O
perhaps, comes within the scope of a very special case. I accept
P P
what Mr McGuinniety has submitted to me, that this court can
deal with this case on a case-by-case basis.
Q Q
R 28. The result is this: R
S 29. In respect of the three offences of which the S
defendant is convicted, I order that the defendant be sentenced
T T
to DATC.
U U
CRT27/19.10.2010/ML 5 DCCC805/2010/Sentence
V V
A 30. In order to eliminate any chances of doubt or A
ambiguity, I make it clear that these sentences are to run
B concurrently with one another. B
C C
D D
E (R. Chan) E
Deputy District Judge
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT27/19.10.2010/ML 6 DCCC805/2010/Sentence
V V
A DCCC805/2010 A
IN THE DISTRICT COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
CRIMINAL CASE NO. 805 OF 2010
C C
----------------------
D HKSAR D
v.
E E
Ng Sai-hung
F F
G ---------------------- G
Before: Deputy District Judge R. Chan
H Date: 19 October 2010 at 4.26 pm H
Present: Miss Lisa Go, PP, of the Department of Justice, for
I
HKSAR I
Mr Luke McGuinniety, instructed by Ivan Tang & Co.,
for the Defendant
J Offence: (1) and (2) Possession of a dangerous drug (管有危險藥 J
物)
K
(3) Possession of apparatus fit and intended for the K
inhalation of dangerous drugs (管有適合於及擬用作吸服危險藥
物的器具)
L L
M
--------------------- M
Reasons for Sentence
N N
---------------------
O O
1. The defendant pleaded guilty to two counts of
P possession of dangerous drugs and one count of possession of P
apparatus fit and intended for the inhalation of a dangerous
Q Q
drug.
R R
2. For the purposes of sentencing, the facts perhaps are
S not so important here. It is rather the quantity that matters S
most, in my view. The drug involved in this case consists of two
T types of dangerous drugs; cocaine and “Ice”. The quantity of T
cocaine found in this case is 0.59 grammes, whereas the quantity
U U
of “Ice” is 10.26 grammes.
CRT27/19.10.2010/ML 1 DCCC805/2010/Sentence
V V
A A
3. The defendant is a 42-year-old divorced man.
B B
4. If his most recent conviction is to be taken into
C C
account, he has been brought before court and convicted of
various offences on nine previous occasions. The majority of
D D
those convictions are drug-related.
E E
5. The defendant has been sentenced to DATC three times
F before. The most recent detention order was made in July this F
year, in relation to a case of simple possession of a dangerous
G G
drug in Shatin Magistracy. Therefore, at the moment, the
defendant is still undergoing treatment at the DATC in respect
H H
of that conviction.
I I
6. Prior to this latest detention order, the defendant
J was last sentenced to a DATC in 2007, but very unfortunately, J
the defendant did not seem to benefit from that detention order,
K and he relapsed and committed the present offences and the K
offence for which he was sentenced to DATC in Shatin Court as
L L
well.
M M
7. It is obvious that the defendant is a drug dependent,
N and he has been a drug dependent for some considerable time. N
O 8. Mr McGuinniety, counsel for the defendant, in his O
mitigations, says the defendant, in fact, is not as bad as his
P P
record suggests. Clearly, he has a long drug problem and that is
the reason, perhaps a major reason, why he has been in trouble
Q Q
with the law in the past, but the defendant is not a person
R without passion. R
S 9. Mr McGuinniety submits and he has evidence to prove S
that, the defendant has been making contribution to World
T T
Vision, and for the last four years, the total amount of
contribution made by the defendant well exceeded $11,000.
U U
CRT27/19.10.2010/ML 2 DCCC805/2010/Sentence
V V
A A
10. Mr McGuinniety says not only this is not common for a
B drug dependent, it is not common for a person with long criminal B
history. Perhaps that can be seen as an indication that the
C C
defendant is not irredeemable.
D D
11. Mr McGuinniety further says that the defendant, in
E fact, has been struggling very hard in the past years to rid E
himself of the drug habit. Unfortunately, his determination to
F quit the habit did not seem to be enough. F
G G
12. Now that the defendant is at the DATC undergoing
treatment, the defendant seems to be doing well, and therefore,
H H
Mr McGuinniety urges this court to consider another DATC order,
I
because this is the most beneficial sentence, both to the I
defendant and the society as well.
J J
13. I have carefully considered submissions made by
K Mr McGuinniety on the defendant’s behalf. K
L L
14. I have carefully considered what the DATC report says
about the defendant.
M M
N 15. I am aware that the drug involved in this case is not N
of insignificant amount. Taking the quantity of “Ice” alone, the
O quantity involved is some 10.29 grammes, which is quite O
substantial for simple possession offence.
P P
16. If the defendant is charged with trafficking in a
Q Q
dangerous drug involving this quantity of “Ice”, he is looking
R at a substantial period of imprisonment. However, he was not R
charged with trafficking.
S S
17. I do not know exactly how the prosecution come to a
T T
decision to charge this defendant with simple possession only,
but on all the available information, one can easily come to a
U U
CRT27/19.10.2010/ML 3 DCCC805/2010/Sentence
V V
A reasonable conclusion that, perhaps, the defendant’s previous A
record, plus the fact that he was found with various apparatus
B for inhalation of dangerous drugs, supports the view that he is B
a drug abuser, rather than a drug trafficker.
C C
18. There is more evidence to support the same view.
D D
If one looks at the defendant’s record, not only that he has
E never been found guilty of any trafficking offences, there is no E
indication whatsoever that the defendant has been involved in
F any kind of illegal activities in order to fund his drug F
addiction. This is significant, because if there was such
G G
indication, perhaps this court would not be inclined to consider
any other sentencing option other than imprisonment.
H H
I
19. What it boils down to is this: the defendant is a drug I
abuser, and that is it.
J J
20. The defendant is now undergoing treatment at the DATC.
K The DATC report suggests that he is doing well there, and K
therefore, the chances of his being able to quit drug addiction
L L
are there.
M M
21. In my view, if the defendant is able to stay drug-
N free, not only that the defendant may benefit from it, the N
society as a whole may also benefit. If the defendant is able to
O resist the temptation of drug abuse, he will not be charged with O
any drug offence again. If he is able to stay drug-free, then
P P
there is no more need for him to buy dangerous drugs from other
drug pushers. This will benefit the society.
Q Q
R 22. I am aware that the period of detention at the DATC R
varies from 2 to 12 months. It is within the sole discretion of
S the Commissioner of Correctional Services to decide when is the S
best time to discharge an inmate from the DATC.
T T
U U
CRT27/19.10.2010/ML 4 DCCC805/2010/Sentence
V V
A 23. The defendant has been at the DATC since July this A
year. Therefore, he has, in effect, spent about three months at
B the DATC up to this moment. B
C C
24. According to section 6A of the Drug Addiction
Treatment Centre Ordinance, Cap.244, if a fresh detention order
D D
is made in respect of a person who is already undergoing a
E period of treatment at the DATC, the first detention order shall E
cease to have effect.
F F
25. What it means is that if I make a new detention order
G G
in respect of the defendant, the existing detention order shall
cease to take effect immediately, and the defendant, under the
H H
new order, may well have to face up to 12 months’ detention or
I
treatment at the DATC. I
J 26. This, in my view, may be able to remove concern that J
if a new detention order is made in respect of this defendant,
K this defendant may only have to serve the remainder of the first K
order, which could be significantly shorter than he would have
L L
got under the new order.
M M
27. Having concluded that the defendant is a drug abuser,
N and that the defendant stands a good chance of rehabilitation at N
the DATC, and after taking into account all the relevant
O circumstances, I am prepared to say that the present case, O
perhaps, comes within the scope of a very special case. I accept
P P
what Mr McGuinniety has submitted to me, that this court can
deal with this case on a case-by-case basis.
Q Q
R 28. The result is this: R
S 29. In respect of the three offences of which the S
defendant is convicted, I order that the defendant be sentenced
T T
to DATC.
U U
CRT27/19.10.2010/ML 5 DCCC805/2010/Sentence
V V
A 30. In order to eliminate any chances of doubt or A
ambiguity, I make it clear that these sentences are to run
B concurrently with one another. B
C C
D D
E (R. Chan) E
Deputy District Judge
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT27/19.10.2010/ML 6 DCCC805/2010/Sentence
V V