Police noticed that there were items consistent with renovation work all over the floor in the living room of the flat.
The police conducted enquiries on the 1st accused. He told them that he had come to the flat to do renovation work for the 2nd accused. The 1st accused told the police that at the time he was intercepted, he was leaving the premises.
Enquiries were made of the 2nd accused, who told police that she was the owner of the flat and was living there alone. She said that the 1st accused was her friend and was present because he was doing renovation work for her.
The 1st accused was searched. In a sling bag, which he was carrying, there were items including two mobile phones, a wallet containing just over $1,000 and some resealable plastic bags containing 13.9 grammes of a crystalline solid containing 13.7 grammes of methamphetamine hydrochloride. On being asked by the police what it was, he admitted that it was ‘Ice’. He told the police that the ‘Ice’ was remuneration for the renovation done for “Ha Che”. He asserted that they, that is the drugs, were for his own consumption.
The 2nd accused was also questioned by the police about the drugs seized from the 1st accused. After she was arrested and cautioned, she told the police “That packet of dangerous drug ice you found earlier on was given by me to him as the renovation fees.”
A search was conducted inside the flat. Two further mobile phones were found on a cabinet in the living room. A white hollow figure was found on the top of a cabinet in the bedroom and inside it was found a transparent resealable bag containing 10.6 grammes of a crystalline solid containing 10.5 grammes of methamphetamine hydrochloride. The 2nd accused was asked about these drugs and asserted that she used the drugs for her own consumption.
The 1st accused submitted to a video recorded interview and under caution said that he was earning about $20,000 a month as a furniture deliverer. He was not prepared to answer further questions.
The 2nd accused submitted to a video recorded interview and indicated that she would not answer questions about the present case.
The drugs found in the possession of the 1st accused had an estimated retail of $7,700. The drugs found in the flat inside the hollow white container had a value of $5,900.
Committal Proceedings
Both accused were put before a magistrate. The 1st accused faced a charge of Possession of a dangerous drug, contrary to section 8 of the Dangerous Drugs Ordinance; the 2nd accused faced a charge of Trafficking in a dangerous drug, contrary to section 4 of that ordinance. The subject matter of the 1st charge was the ‘Ice’ found in the possession of the 1st accused and to which the 2nd accused had indicated she had given those drugs as payment for renovation works. The 3rd charge, faced by the 2nd accused, was a charge of Possession of a dangerous drug contrary to section 8 of the ordinance. The subject matter of this charge was the ‘Ice’ found inside the flat in the white hollow figure.
On 17 April 2020, both accused pleaded guilty to the respective charges levelled against them and they were committed to this court for sentence. Both admitted the Brief Facts, which are to be found at page 70 of the file.
It is also pertinent to note that the 1st accused was admitted to bail. The 2nd accused did not apply for bail and was remanded in custody.
Antecedents and mitigation
1st accused
1st accused is aged 34. According to the antecedent report and mitigation offered on behalf of the 1st accused, he is a transportation worker and part-time decoration worker earning about $20,000 a month. He is presently a drug user, having started to take ‘Ice’ about 10 years ago, but weaned himself off ‘Ice’ and was clean for a long period, but relapsed about something of the order of 6 to 8 months ago. Counsel for the 1st accused informs me that the reason for the relapse was stress. In mitigation, it was contended that since the arrest the accused has become drug-free again. However, a different picture emerges in the DATC report. An officer in the Rehabilitation Unit at the Lai Chi Kok Reception Centre concluded:
“Based on medical observation, clinical observation and the facts available, the Medical Officer is of the opinion that defendant is a drug dependent. In view of his weak will-power, the availability of a place in the Drug Addiction Treatment Centre and taking into consideration that drug abuse is his imminent problem, a period of compulsory drug addiction treatment programme coupled with intensive counselling and supervision would be beneficial to him.”
Accordingly, it was recommended that he was considered suitable for Drug Addiction Treatment Centre.
He has previous convictions for theft and possession of a dangerous drug in 2010.
The 1st accused is married with three children. The most recent arrival was a baby boy, born on 19 May 2020. The other two children are aged 9 (he is in Primary 5) and a daughter in Primary 2. His wife is a housewife, aged 34.
The 1st accused said that part of his motivation for becoming drug-free was that he wanted to be a good husband. I accept that. He is remorseful for his conduct. Perhaps curiously, while the 1st accused asserted his anxiety to continue his current family circumstances, he nevertheless is recorded as having said to the Lai Chi Kok officer that he did not want to bother his family members and refused permission for those assessing him for his treatment needs permission to interview the family members. As the report observed “his background information and family opinions on his rehabilitation needs could not be fully obtained and verified as far as possible”.
2nd accused
The 2nd accused is 49. She was born in China. She is employed in selling antiques through the internet and has been so engaged since 2013. She estimates that she earns about $15,000 per month in this regard. She is divorced, with a son and a daughter who are living her former husband. Counsel for the 2nd accused notes that both children are of mature age and both are very supportive of their mother. I accept that submission.
At the time of her arrest, she was living on her own at the flat, the subject of the police raid. The 2nd accused is addicted to ‘Ice’ and has been since 2018. She has one minor previous conviction of breaching a condition of stay. She attributed her addiction to loneliness and the stresses of daily living. Counsel for the 2nd accused makes the point that, perhaps unusually, the 2nd accused is something of a latecomer to drugs.
Sentencing principles
Starting Point - Trafficking
The community of Hong Kong, and as a result, the courts of Hong Kong, have for many years taken a severe view of drug trafficking, particularly in relation to ‘Ice’. This drug has terrible consequences for the individual. Ridding oneself of an addiction to ‘Ice’ is, to say the least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to ‘Ice’ is fraught with instances of disappointment. If ever there was somebody who could testify to that, I guess it would be the 1st accused. The trafficking and possession of ‘Ice’ can also have serious consequences for the family close to the accused.
However, there are serious consequences for the community as well. One of those consequences involves the deployment of medical and health facilities to help people who have become addicted to these drugs. Further, the conduct of persons affected by ‘Ice’ in private, and more pertinently in public, can be quite dangerous. The view of the community and the courts is reflected in the nature of the sentences and the levels traditionally imposed for drug trafficking.
To reflect the serious view that the courts and community take in relation to the trafficking in dangerous drugs, the courts have provided sentencing guidelines for various forms of drugs, including ‘Ice’, which is of course the subject of the charge in this case. The maximum penalty under the law is a fine of $5 million or life imprisonment.
In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. In that case, the Court of Appeal suggested guidelines for up to 600 grammes of ‘Ice’. For between 10 grammes and 70 grammes of ‘Ice’, the suggested guidelines are imprisonment for between 7 and 11 years. The range in question is upon the basis of a sentence following a conviction after trial. That is the basis upon which the starting point is always calculated.
Sentencing principles in relation to the Possession of dangerous drugs
The maximum sentence for possession of dangerous drugs is a fine of $1 million and, subject to section 54A, to imprisonment for 7 years. For reasons which will shortly become apparent, section 54A does not have any impact on this case any longer. There is and can be no tariff for the possession of dangerous drugs. ‘Ice’, when possessed by an addict, is still an evil and pernicious drug, having consequences with families, and the case of the 1st accused, as I say, rather demonstrates this proposition.
Nevertheless, there are authorities which guide the approach to sentence in cases of possession of dangerous drugs. In HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405, the court identified a three-step approach:
(1) identify the starting point for the sentence;
(2) determine whether there is any (and if so what latent risk) and determine what, if any, effect such latent risk may have on the starting point; and
(3) adjust the total sentence to take into account mitigation.
In HKSAR v Mok Cho Tik [2001] 1 HKC 261, offered a careful review of decisions of Hong Kong courts on the appropriate level for sentencing of possession of drugs in the nature of heroin and ‘Ice’. The court indicated that for possession of 15.7 grammes of ‘Ice’, the normal starting point would be in the region of 12 to 18 months. The court then held that what needed to be determined was the latent risk factor. The court suggested that the factors such as whether the offender was in employment; whether the drugs were kept in a place to which others had access; whether the offender had previous convictions for trafficking; and the quantity of drugs in question. In my judgment, there may be other factors and the context in which the possession occurs and the drug history of the accused could well be highly relevant. Ultimately, the point made by the Court of Appeal was that for the assessment of whether there was a latent risk, or the extent of it, was a very fact-sensitive matter.
The matter was further considered in HKSAR v Minney [2011] 3 HKLRD 566. In that case, Fok JA reviewed the principles governing the assessment of latent risk. It was held that a properly conducted assessment of this risk in sentencing a person for simple possession did not violate any human rights of the sentenced person. The court held that assessing the latent risk in any given case upon the basis of a propensity to traffic would be inappropriate. The appropriate way to consider the matter is to consider the real risk of some drug, which is the subject of the charge, being redistributed and finding its way into other hands apart from an offender.
Discount
The authorities demonstrate that a person who pleads guilty at the earliest practicable opportunity is ordinarily entitled to a discount from the appropriate starting point of 33 per cent.
Application of sentencing principles
Simple possession on the part of the 1st accused
In the light of the authorities discussed in the context of simple possession of drugs in the nature of ‘Ice’ and heroin, I have two options:
(1) not to accept the advice of the Rehabilitation Unit of the Lai Chi Kok Reception Centre and sentence the accused to imprisonment. If I was to do that, I consider that a sentence of 12 months’ imprisonment would be appropriate.
(2) opt for the rehabilitative option.
I take account of the fact that the 1st accused has only one previous conviction for possession of dangerous drugs and that was something of the order of 10 years ago. In his mitigation and in the antecedent report, it is observed that he got rid of his addiction and only in recent times relapsed. The explanation for that, offered by him, was stress. The medical evidence in the DATC report is against this conclusion. The 1st accused was leaving the premises where he had received the drugs as payment for redecorating. He told me through his counsel that he was a part-time transportation worker and part-time decoration worker. I accept that as is true. There is no indication that the 1st accused was going anywhere but back to his home. He made full and immediate admissions to the police, including an assertion that the drugs were for his own use. I have no reason to disbelieve that. Accordingly, I assess the latent risk in this case is minimal. I do not propose to enhance the sentence of this accused for this offence. For reasons which will shortly become apparent, the assessment of latent risk is a very context-specific exercise and this will be shortly seen in the context of my assessment of latent risk in relation to the 2nd accused, which I do in a somewhat different way.
If I was to sentence the 1st accused to imprisonment, on a proper application with the appropriate discount for a plea of guilty, that would leave the 1st accused with a possible sentence of 8 months’ imprisonment.
However, the report of the Commissioner of Correctional Services on the suitability of such person for cure and rehabilitation and on the availability of places at an addiction treatment centre (as defined in the Drugs Addiction Treatment Centres Ordinance, Cap 224) is before me. I have read the report and I consider it to be compelling both in terms of the thoughtful examination of the 1st accused and the conclusions based on that examination.
In my judgment, perhaps particularly because the accused has not been to DATC before and because of the facilities available to a person in the position of the accused, it seems to me that detention in such a centre is perhaps not just the best option, but it is just about the only sensible option. In this case, the benefits of potential rehabilitation greatly outweigh the alternative of imprisonment for something of the order of 8 months. Pursuant to section 4(1) of the Drug Addiction Treatment Centres Ordinance, Cap 244, I am satisfied that in the circumstances of the case, and having regard to the character and previous conduct of the 1st accused, it is in his interest and in the public interest that he should undergo a period of cure and rehabilitation in a Drug Addiction Treatment Centre. I order that he be detained in an Addiction Treatment Centre. Section 4(4) of that ordinance provides that in the event of such an order being made, that no conviction shall be recorded against the accused, the subject of that order, unless in the opinion of the court, the circumstances of the offence so warrant and the court orders accordingly. I do not think that those circumstances exist and no conviction shall be recorded against the 1st accused.
In making that order I am very conscious of the anxieties of the accused, as a parent and his wife, who is present in court, as a parent, over the position of their child in the immediate short-term and over the slightly longer term. In my judgment, although the accused may well be exposed to a slightly longer period in the DATC, this is an investment which this accused can embrace with both arms, if he chooses, and fix his addiction once and for all. His family will not thank me now, but they may thank me, and more importantly thank the accused, when he comes out of the Treatment Centre.
2nd accused
So far as the trafficking charge, I fix a starting point of 7 years and 1 month. On the application of the 33 per cent discount, that will leave the accused with a sentence of 4 years and 8 months.
In relation to the simple possession charge, I think the quantity would justify a starting point of 10 months. However, the latent risk must be assessed differently to that of her co-accused. The drugs were kept in the same premises as the active trafficking. I think there is a real risk that the drugs left in the premises might well find themselves into the hands of others. Nothing in this assessment is concerned with a disguised propensity to traffic. Nevertheless, the quantity is small and the 2nd accused is, herself, an addict. I assess the latent risk is worthy of an enhancement of 2 months’ imprisonment. Reducing this by 33 per cent leaves the 2nd accused facing a sentence of 8 months’ imprisonment.
I readily accept that the 2nd accused is a latecomer to dangerous drugs. But sadly, this court all too often sees younger members of the community getting dragged into the vortex of dangerous drugs and traffickers having hopes of a lifetime’s worth of custom. I accept that the motivation to resort to drugs was an understandable combination of depression and loneliness, and it goes without saying that on no account could drugs ever be the solution in such circumstances. The law requires that the 2nd accused be sent to prison. Obviously, section 54 of the Dangerous Drugs Ordinance is inapplicable and I earnestly hope that the 2nd accused takes each and every opportunity to get herself clean of drugs while in prison and comes out facing a fresh start. It seems to me that a partly consecutive and partly concurrent sentence would meet the justice of the case, and I order that 3 months of the sentence of possession of dangerous drugs be served consecutively to the trafficking in dangerous drugs sentence, and that 5 months of that possession sentence be served concurrently and that is the order of the court.