HKSAR v. Somrit Tanapost

DCCC 1066/2022

[2023] HKDC 1609

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1066 OF 2022

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REASONS FOR SENTENCE

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1.The defendant Somrit Tanapost came to Hong Kong on 15 February 2020. He was permitted to stay until 16 March 2020, (on a visa of 30 days)  but did not leave within the prescribed period. He was still in Hong Kong at about 8 pm on 10 July 2020 in Wan Chai.

2.When he was searched, he had with him a bag of ‘Ice’ (ie methamphetamine hydrochloride), the total weight of which was 0.97 grammes.  In addition, he had a plastic bottle with some liquid containing traces of ‘Ice’. 

3.Further investigation revealed that during his stay in Hong Kong, he had been using a social platform account to offer sex services to other people.

4.On the above facts, he was charged with:-

(1)  “Establishing business while being a person who remains in Hong Kong in breach of the limit of stay after having been given permission to land in Hong Kong”, contrary to section 38AA(1)(c)  and 38AA(2)  of the Immigration Ordinance; two, breach of condition of stay, contrary to section 41 of the Immigration Ordinance.

(2)  “Possession of a dangerous drug”, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance.

(3)  “Possession of apparatus fit and intended for the inhalation of a dangerous drug”, contrary to section 36(1)  and (2)  of the Dangerous Drugs Ordinance (for the bottle containing liquid with traces of ‘Ice’.

He pleaded guilty to all four counts and was convicted on the basis of the facts admitted.

Sentencing Considerations

5.For the charge of offences under Immigration Ordinance, especially in relation to 38AA(1)(a)  and (b), there are clear authorities to the effect that even on a guilty plea, the offences warrant a sentence of 15 months.  I see no reason to depart from the existing authorities, although the facts in the present case are different from the usual ones.  In view of the penalties provided in the Ordinance are the same in respect of the offences stated in all three sections, I would adopt a 15 months’ imprisonment for both counts. 

6.There are two charges under different sections of the same Ordinance, technically they are independent offences.  I take into account of the fact that the considerations for both counts are similar, and the 1^st charge involved certain expertise the computer trade and also some skill in management and planning.  Taking into account of his pleas, I would order 6 months of the 2^nd count to run consecutive to the 1^st, making it a total of 21 months. 

7.In respect of offences relating to possession of dangerous drugs and possession of apparatus (the 3^rd and the 4^th count), there are no clear sentencing guidelines.  Had the defendant not been sentenced in respect of other offences, the law would require a report from the Commissioner of Correctional Services in order to determine whether he is suitable candidate for the compulsory drug addiction treatment programme provided by the department.  Since he is sentenced in respect of the other offences for the total of 21 months, I do not consider it is necessary to order such report. 

8.Furthermore, on the practical side, since the defendant is not a resident of Hong Kong, it is almost certain that after he has served his sentence he will be repatriated to Thailand.  Even if he is proved to a drug addict and suitable for the compulsory programme, I see no reason why the Hong Kong Government should waste further resources on him by helping him to get rid of his addiction.  As it is a relatively small amount of drugs involved, I would adopt a starting point of 3 months for each count to run concurrently for the 3^rd and the 4^th count.  By reasons of this plea guilty, it is reduced down to 2 months. 

Mitigation

9.The defendant lived with his grandmother in Thailand and was a student in aviation business management at a university in Thailand.  He also worked a part-time job to cover his living expenses and in contribution to the living expenses of his grandmother. 

10.According to the defence counsel, he came to Hong Kong on 17 March 2020 for a two-week holiday, during which the pandemic hit Thailand and he was unable to return, his university classes and work had all stopped.  He ran out of money and had to work as a sex worker to pay for living expenses in Hong Kong. 

11.The defendant’s lawyer asked this court to consider a lenient sentence so that he could return to Thailand as soon as possible in order to continue his studies and to continue to take care of his grandmother. 

12.How a person who made HK$2,600 per month as a part-time dancer could afford a holiday for two weeks in Hong Kong is beyond me.  Needless to say, I am sceptical of the defence explanation put forward.  While the pandemic and the restriction that came with it were not something to be expected, according to my recollection at the time Hong Kong was still under a lockdown. Therefore, even accepting his defence and explanation he was taking a risk he should not have taken. 

13.Having considered the whole circumstances I do not find any reason for exercising discretion of leniency.  I order that the 2 months’ imprisonment in respect of the drug related offences to run consecutive to the first two counts of 21 months. 

14.In all, the defendant is to serve a total of 23 months’ imprisonment.