COURT: The defendant was originally charged with a count of trafficking in dangerous drugs. He pleaded not guilty to this count but pleaded guilty to the offence of possession of dangerous drugs. The plea to the lesser offence was not accepted by the prosecution. The case proceeded to trial and eventually the jury found him not guilty of the offence of trafficking but guilty of the offence of possession.
In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs involved, personal background of the defendant, mitigation put forward on his behalf and the observations in the DATC report.
I have also had regard to those general sentencing principles and approach as laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186 which are applicable in the present case.
The facts of the case may be summarised as follows. As a result of a 999 call, police and ambulance men arrived at the house where the defendant was living. There, a lady was found unconscious, but as the evidence emerged this fact has little relevance to sentencing in this case.
Subsequent search of the house revealed existence of the drugs as specified in the indictment. Under caution, the defendant admitted possession of all the drugs and said they were for his own consumption. He repeated this before the jury.
The case which the prosecution put forward to the jury was specifically one of sharing of dangerous drugs. Obviously the jury was not satisfied that such allegation had been proved beyond reasonable doubt.
The court was told that the defendant is now 48 years of age. He is an UK citizen and received education there until graduation from university. He came to Hong Kong in 2010 and has been living here since then. This is the first time he has been convicted of any criminal offence.
The defendant has a successful career. Since graduation, he had worked in various banks and investment firms, some renowned worldwide. His job at the time of the offence was with the BNP, earning a monthly income of about $350,000 and supervised more than 80 staff working at various places in the Asian-Pacific area.
When the defendant testified, he said he started consuming drugs about six months prior to the incident because of his stress of the work. The drug he consumed was mainly ‘Ice’. Despite there were various types of drugs found, almost all of the drugs were ‘Ice’. He said the other drugs, which were cocaine and LSD, and were of minimal quantity, were introduced by those supplying drugs to him to try.
Since it is a statutory requirement, a DATC report has been obtained. According to the report, although the defendant claimed he had been consuming drugs, he is no longer drug-dependant. Treatment in DATC is not recommended.
In the light of the DATC report and having considered the whole circumstances, including the personal background of the defendant, in my judgment, an imprisonment term rather than a rehabilitative measure is appropriate.
In addition to the cases I mentioned earlier, I have regard to cases such as HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405, HKSAR v Lee Chun Man, CACC 360/2014, HKSAR v Wong Wai Wah, CACC 181/2017, and HKSAR v Yeung Wing Sing, HCCC 177/2019, which are cases specifically in relation to sentencing for the offence of possession of dangerous drugs.
In all the circumstances of the present case, I am of the view that the defendant should be sentenced primarily on the basis that he was a bona fide user of the drugs found. The quantity of the drugs found was not insignificant. For ‘Ice’ alone, the total quantity was about 36 grammes. There were other drugs like cocaine and LSD, however, as the quantity was very small, I am of the view that existence of the other types of drug has little significance to sentence and does not amount to a factor which calls for an enhancement of the sentence.
In all the circumstances, having regard to the quantity of the drugs, I adopt a starting point of 18 months. I then make an assessment of the latent risk of dissemination. On the face of the quantity, the risk appeared to be substantial, however, I also bear in mind relevant factors including the followings:
(1) As soon as he was arrested, the defendant said under caution that all the drugs were for his own consumption;
(2) Urine test conducted on 21 February 2023 was positive for ‘Ice’;
(3) Personal background of the defendant, in particular his employment and his very high income;
(4) There is no indication to the slightest degree that he has to disseminate drug in order to support this habit;
(5) The drug verdict which reflects that the jury were not satisfied for sure that the defendant’s possession of dangerous drugs was for the purpose of sharing;
(6) The defendant was, before this case, a person with a clear record;
(7) There is no direct evidence that he had in any way trafficked in dangerous drugs before including the act of sharing;
(8) All the drugs were found at the home of the defendant;
(9) Evidence shows that he consumed drugs at his home;
(10) The house situated in a relatively remote place at Mui Wo on Lantau Island and the place is in a closed area to where permission is required to drive a car;
(11) Inhaling devices were found but only of small number;
(12) The evidence not only from the defendant himself but also a prosecution witness that social gathering in the house was rare and spare, and had not caused any undue noise or nuisance.
That said, with this quantity, my finding is that there was a real risk of dissemination. As regard the degree of risk, my assessment is that it was low to medium and an enhancement of 9 months is appropriate and sufficient to reflect this degree of risk. For this reason, I adopt an ultimate notional sentence after trial of 27 months.
The defendant pleaded guilty to the offence of possession of dangerous drugs which is the offence he now stands convicted. He indicated his intention to plead guilty to this offence before the case was committed and the prosecution confirmed that the defendant is, in the circumstances, entitled to a one-third discount according to the guidelines in HKSAR v Ngo Van Nam, CACC 418/2014.
Having considered the whole circumstances and mitigation submission, apart from the guilty plea, I do not consider there exists any matter which justifies a further discount.
In my judgment the sentence to be imposed appropriately reflects the overall culpability of the defendant and is a fair, just and balanced one in all the circumstances of the case and of the defendant.
For the reasons I have said, I sentence you to an immediate imprisonment term of 18 months.