DCCC 1149/2008
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1149 OF 2008
HKSAR
V
CHOU Kin-pong, Even (aged 25 years)
Before: Deputy District Judge Eddie Yip
Date: 18 Feb 2009 at 9:49am
Present: Miss. Hermina Ng, Public Prosecutor for HKSAR
Mr. Kwong Chi Ho, of Messrs T.K. Cheng & Co.,
for the Defendant
Charge: Possession of a dangerous drug (管有危險藥物)
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Reasons for Sentence
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The charge and facts
1. The defendant pleads guilty to possession of a dangerous drug.
The offence took place at 11:33 p.m. on 22 October 2008. He was seen
getting off his car on Fa Yuen Street and walking towards Dundas Street
in a furtive manner. The police stopped and searched him. It yielded a
cigarette box containing 2 plastic bags of ketamine.
2. Under caution he admitted that it was for self-consumption. He
had bought it in Tsuen Wan for $2,000.
3. A government chemist analysed and weighed the substance. The
substance in each bag was of about the same weight. The total was 26.39
grammes of a powder containing 22.62 grammes of ketamine.
The Defendant’s circumstances
4. The mitigating letters from his father, his employer, and himself
and the Drug Addiction Treatment Centre Report have given me some
useful information about his background. He is now 25 years old. He
has attained F. 5 education. He has been a lorry attendant for 5 years. He
lives with his parents and 4 sisters. His father is 73 years old and suffers
chronic lung disease. His employer commends him as a hardworking and
responsible employee. He consumes drugs to alleviate pressure at work
and his sense of inferiority.
5. He has 4 previous convictions, one of which was for a similar
offence in 2002 where he was put on probation. That was his second
probation. His first probation was in 2000 for publishing and possessing
indecent articles.
The principles for sentencing
Sentencing options for simple possession
6. Section 8 of the Dangerous Drugs Ordinance (Cap. 134) states the
maximum fine and term of imprisonment as follows:
(1) Save under and in accordance with this Ordinance or a licence granted by
the Director thereunder, no person shall-
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(a) have in his possession; or
(b) smoke, inhale, ingest or inject,
a dangerous drug.
(2) Any person who contravenes any of the provisions of subsection (1) shall
be guilty of an offence and shall be liable-
(a) on conviction upon indictment to a fine of $1000000 and,
subject to section 54A, to imprisonment for 7 years; or
(b) on summary conviction to a fine of $100000 and, subject to
section 54A, to imprisonment for 3 years. (my emphasis)
Section 54A allows for other types of sentence as follows:
(1) Subject to subsection (1A), no sentence, other than a non-custodial sentence,
shall be imposed on a person for an offence against section 8 or 36 unless the
court has first considered a report of the Commissioner of Correctional
Services on the suitability of such person for cure and rehabilitation and on the
availability of places at addiction treatment centres (as defined in the Drug
Addiction Treatment Centres Ordinance (Cap 244)) (Amended L.N. 30 of
1982; 24 of 1987 s.4)
……
(4) In this section "non-custodial sentence" means one or more of the following
sentences-
(a) a fine;
(b) a probation order under section 3 of the Probation of Offenders Ordinance
(Cap 298);
(c) a suspended sentence of imprisonment under section 109B of the Criminal
Procedure Ordinance (Cap 221).
Latent risk
7. In Attorney General v Chan Ching-ho [1994] 2 HKC 457, Power
VP said, at 458:
The seriousness of possession of a large quantity of drugs was well-described
by Judge Lugar-Mawson in Chiu Hung-wong's case when he said at p. 189,
lines 31-45:
“The amount in the possession of the respondent was indeed
substantial. The sentence on a person found to have been trafficking in
that amount would be in the band ranging from eight to twelve years.
We remind ourselves immediately that he was found guilty only of
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simple possession and must be dealt with upon that basis. The
gravamen of such an offence, when a large quantity of drugs, is
involved is the danger which is posed to society by having such drugs
"at large" in the control of an addict. The amount involved cannot but
be regarded as being in the top range of quantity where it would be
proper to lay a charge of simple possession rather than one of
possession for the purpose of trafficking. We so observe as it indicates
that this offence must be ranked among the more serious offences that
could be committed by an offender convicted under s. 8.”
Sentencing the trafficker
8. The Court of Appeal in Secretary for Justice v Hii Siew Cheng
CAAR 7/2006 has laid down sentencing tariffs for trafficking in ketamine
as follows:
(1) up to 1 gramme – within the sentencer’s discretion;
(2) over 1 gramme to 10 grammes – 2 to 4 years’ imprisonment;
(3) 10 to 50 grammes – 4 to 6 years’ imprisonment;
(4) 50 to 300 grammes – 6 to 9 years’ imprisonment;
(5) 300 to 600 grammes – 9 to 12 years’ imprisonment;
(6) 600 to 1000 grammes – 12 to 14 years’ imprisonment; and
(7) over 1000 grammes – 14 years upwards.
The sentence I pass
9. In the DATC Medical Officer’s opinion, the Defendant is no longer
a drug dependant. He is not recommended for the DATC. If he had been
charged with trafficking, he would have faced 4 to 6 years’ imprisonment.
The maximum sentence for simple possession on conviction upon
indictment is 7 years. It cannot be overstressed that he is to be sentenced
here for simple possession and not trafficking. I rule out all non-custodial
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sentences because of the quantity involved and his background. Based
on the principle in Chan Ching-ho (supra) and Chiu Hung-wong (supra),
the latent risk factor must be taken into account.
10. I take 2 years as the starting point. Because of his plea of guilty, I
reduce it to 1 year and 4 months. There are no other mitigating factors.
This is the sentence I pass.
Eddie Yip
Deputy District Judge
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