COURT: The defendant was charged with two counts of trafficking in dangerous drugs.
On the second day of the trial, the defendant pleaded not guilty to trafficking in the drugs as particularised in the charges on the indictment but guilty to the lesser charge of simple possession. The prosecution did not accept that plea and the case proceeded to trial.
At the conclusion of the trial, the defendant was acquitted after trial of trafficking offences, but was convicted by the jury on the alternative offence of possession of dangerous drugs.
After his conviction, and in light of the defence put forward, which was the drugs in question were in the possession of the defendant for his own consumption, he having been addicted to the drugs in question for many years, as required by section 54A of the Dangerous Drugs Ordinance, I called for a Drug Addiction Treatment Centre Report at the hearing on 22 July 2024 as well as a background report.
It is clear from the DATC report that the defendant is a drug dependant.
Facts
The brief facts of the case are as follows. The defendant was stopped in the staircase of 14th floor, Chungking Mansion, by police officers in the early hours of the morning on 9 April 2021. Upon search, a resealable plastic bag containing suspected drugs was found inside the defendant’s black wallet. Later analysis found it to be a solid containing 3.09 grammes of ‘Ice’. This forms the subject-matter of Count 1.
After arrest and under caution, the defendant voluntarily said that, “The bag of stuff is for my own consumption, nothing else”. He also said he still had something in the hotel room.
The defendant then agreed to take the police officers to Room 910, Hotel Pravo, in Tsim Sha Tsui, situated about five minutes’ walk from Chungking Mansion. In the room, a blue coin bag was found, and inside it, there was a digital scale and two tissue paper wrapping two transparent resealable plastic bags later confirmed to contain 12.2 grammes of ‘Ice’ and in the other 5.68 grammes of a mixture containing 5.33 grammes of cocaine. This forms the subject-matter of Count 2. On the bed, a black Gucci shoulder bag containing 35 transparent resealable plastic bags was found.
Later, a video-recorded interview was conducted with the defendant on 9 April 2021, he maintained that he knew what he had was cocaine and ‘Ice’ and they were for his own consumption. He also said:
a. he bought 14 grammes of ‘Ice’ from someone named Peter and it costed about $2,900;
b. he planned to divide the drugs so he could consume it slowly as he did not want to consume too much at a time;
c. the weighing scale and resealable bags were for dividing it for himself, and he would limit his daily consumption to no more than 1 gramme. He said he had 3 grammes or so on him upon search because he was thinking that he would use those drugs for a few days;
d. he said he had been taking drugs for about 12 to 13 years but he quit every now and then. He said he was habitually consuming ‘Ice’ and cocaine;
e. he said he checked in his room sometime after 10 and 11 pm and stayed there by himself.
A sum of $5,202 cash was found on him, but the officer responsible for the search could not recall whether the cash was found in the defendant’s wallet or from a bag.
The officer who conducted the search was asked whether he saw personal items belonging to the defendant in Room 910, to which he said he saw none, or else he would have seized them and taken them back to the police station as his personal property.
The defendant chose not to give evidence in the trial. He relied upon his account given in his video-recorded interview, which was admitted into evidence by way of Admitted Facts.
The drugs seized had a total estimated retail value of about $15,000-odd.
It is also agreed that both cocaine and ‘Ice’ were present in the defendant’s urine sample taken the day after his arrest, indicating that he had been using ‘Ice’ and cocaine.
The defendant’s claim of possession of the drugs for self-consumption was consistent with the verdict returned by the jury. The court will proceed to sentence him on that basis.
Defendant’s Background and Mitigation
The defendant is 34 years old. He admitted in his video-recorded interview that he had been a drug abuser for 12 to 13 years. He has no criminal record in Hong Kong at the date of the present offences. In 2022, three convictions were recorded, of which one was drug-related.
He was held in custody for about nine months after arrest from 9 April 2021. He was granted bail on 31 December 2021.
According to the DATC report, the defendant started taking cocaine and ‘Ice’ in 2007. The report also informs that prior to his gaol custody on 4 June 2024 (for another unrelated offence) he still took both drugs and the urine specimen collected from him on 5 June 2024 was found to be positive for ‘Ice’ and cocaine.
Following his release from Tong Fuk Correctional Institution on 5 July 2024, he relapsed to drug abuse and took ‘Ice’ and cocaine again for three more times before his admission to Lai Chi Kok Reception Centre on 22 July 2024. The urine specimen collected from him on 23 July 2024 was also found to be positive for ‘Ice’ and cocaine.
I trust that Mr Davies has said all that can be said in mitigation for the defendant. However, the report says that based on medical examination, clinical observation and the facts available including his positive urine test, the medical officer has come to a conclusion that the defendant is a drug dependent.
In view of the defendant’s weak will-power, the availability of a place for him, and taking into consideration that drug abuse is his imminent problem, the DATC report recommended a period of compulsory drug addiction treatment, coupled with intensive counselling and statutory supervision would be beneficial to the defendant. He is considered suitable for admission to a DATC.
The defendant’s background report also reveals he received education up to Form 5. He was led astray by bad influence around the age of 13 and got involved with drugs. When he was 18, he was sent to Guangzhou and worked there for about five years. He came back to Hong Kong in early 2019. The collected information showed the defendant had a long history of taking dangerous drugs. The report also stated that the defendant had a stable job after living with his girlfriend in January 2024. His girlfriend is supportive of him and said he is a responsible person who worked hard to support her and her children.
Sentence
The proper approach to sentencing possession of dangerous drugs offence is summarised in HKSAR v Lee Chun Man in CACC 360/2014 and in HKSAR v Wong Wai Wah, CACC 181/2017. And that on a charge of simple possession, the judge is obliged to adopt a three-stage approach to the assessment of sentence as set out in HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405.
More recently, the Court of Appeal in Chan Chun Hei [2024] 1 HKLRD 118 stated at paragraph 21 that:
“...it is important to recognise that imprisonment is not always the most appropriate response of the courts to those involved in a drug offence for the first time, and in appropriate cases the public interest would be better served by focusing on the rehabilitation of the offender. The principle has been given legislative force by the Drug Addiction Treatment Centres Ordinance (Cap.244).”
According to both reports, the defendant was unable to quit drugs, and it was reported that the defendant was still taking drugs during the bail period, and that he was tested positive for ‘Ice’ and cocaine the day after his conviction on 23 July 2024.
I note that the defendant has not been sentenced to DATC in Hong Kong before. In view of the contents of the DATC report, I am not going to sentence the defendant to a prison term. However, I am of the view that it is in his interest and in the public interest that the defendant should receive cure and treatment in a DATC in order to get rid of his drug habit which is the root of his problem. I accept the recommendation contained in the DATC report.
The defendant is sentenced to DATC on both charges and I also order that the conviction of both charges are to be recorded.