A HCCC 4/2023 A
[2024] HKCFI 2758
IN THE HIGH COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 4 OF 2023
C C
-----------------
D D
HKSAR
E v E
Lee Wai-lung
F F
-----------------
G G
Before: Recorder Maggie Wong, SC
Date: 6 August 2024 at 2.46 pm
H Present: Mr Edward F Le B Laskey, on fiat, for HKSAR H
Mr Oliver Davies, instructed by Wong & Co, for the
I
accused I
Offence: (1) Trafficking in a dangerous drug (販運危險藥物)
(2) Trafficking in dangerous drugs (販運危險藥物)
J J
---------------------------------
K
Transcript of the Audio Recording K
of the Sentence in the above Case
---------------------------------
L L
COURT: The defendant was charged with two counts of trafficking
in dangerous drugs.
M M
On the second day of the trial, the defendant pleaded not
N guilty to trafficking in the drugs as particularised in the N
charges on the indictment but guilty to the lesser charge of
simple possession. The prosecution did not accept that plea
O and the case proceeded to trial. O
At the conclusion of the trial, the defendant was acquitted
P after trial of trafficking offences, but was convicted by P
the jury on the alternative offence of possession of
Q dangerous drugs. Q
After his conviction, and in light of the defence put
R forward, which was the drugs in question were in the R
possession of the defendant for his own consumption, he
having been addicted to the drugs in question for many
S S
years, as required by section 54A of the Dangerous Drugs
Ordinance, I called for a Drug Addiction Treatment Centre
T Report at the hearing on 22 July 2024 as well as a T
background report.
U U
CRT12/6.8.2024/JC 1 HCCC 4/2023(1)/Sentence
V V
A It is clear from the DATC report that the defendant is a A
drug dependant.
B Facts B
The brief facts of the case are as follows. The defendant
C C
was stopped in the staircase of 14th floor, Chungking
Mansion, by police officers in the early hours of the
D morning on 9 April 2021. Upon search, a resealable plastic D
bag containing suspected drugs was found inside the
defendant’s black wallet. Later analysis found it to be a
E solid containing 3.09 grammes of ‘Ice’. This forms the E
subject-matter of Count 1.
F F
After arrest and under caution, the defendant voluntarily
said that, “The bag of stuff is for my own consumption,
G nothing else”. He also said he still had something in the G
hotel room.
H The defendant then agreed to take the police officers to H
Room 910, Hotel Pravo, in Tsim Sha Tsui, situated about five
I
minutes’ walk from Chungking Mansion. In the room, a blue I
coin bag was found, and inside it, there was a digital scale
and two tissue paper wrapping two transparent resealable
J plastic bags later confirmed to contain 12.2 grammes of J
‘Ice’ and in the other 5.68 grammes of a mixture containing
5.33 grammes of cocaine. This forms the subject-matter of
K Count 2. On the bed, a black Gucci shoulder bag containing K
35 transparent resealable plastic bags was found.
L L
Later, a video-recorded interview was conducted with the
defendant on 9 April 2021, he maintained that he knew what
M he had was cocaine and ‘Ice’ and they were for his own M
consumption. He also said:
N a. he bought 14 grammes of ‘Ice’ from someone named Peter N
and it costed about $2,900;
O O
b. he planned to divide the drugs so he could consume it
slowly as he did not want to consume too much at a
P time; P
c. the weighing scale and resealable bags were for
Q Q
dividing it for himself, and he would limit his daily
consumption to no more than 1 gramme. He said he had
R 3 grammes or so on him upon search because he was R
thinking that he would use those drugs for a few days;
S d. he said he had been taking drugs for about 12 to 13 S
years but he quit every now and then. He said he was
habitually consuming ‘Ice’ and cocaine;
T T
e. he said he checked in his room sometime after 10 and
U 11 pm and stayed there by himself. U
CRT12/6.8.2024/JC 2 HCCC 4/2023(1)/Sentence
V V
A A sum of $5,202 cash was found on him, but the officer A
responsible for the search could not recall whether the cash
was found in the defendant’s wallet or from a bag.
B B
The officer who conducted the search was asked whether he
saw personal items belonging to the defendant in Room 910,
C C
to which he said he saw none, or else he would have seized
them and taken them back to the police station as his
D personal property. D
The defendant chose not to give evidence in the trial. He
E relied upon his account given in his video-recorded E
interview, which was admitted into evidence by way of
Admitted Facts.
F F
The drugs seized had a total estimated retail value of about
G $15,000-odd. G
It is also agreed that both cocaine and ‘Ice’ were present
H in the defendant’s urine sample taken the day after his H
arrest, indicating that he had been using ‘Ice’ and cocaine.
I I
The defendant’s claim of possession of the drugs for
self-consumption was consistent with the verdict returned by
J the jury. The court will proceed to sentence him on that J
basis.
K Defendant’s Background and Mitigation K
L The defendant is 34 years old. He admitted in his L
video-recorded interview that he had been a drug abuser for
12 to 13 years. He has no criminal record in Hong Kong at
M the date of the present offences. In 2022, three M
convictions were recorded, of which one was drug-related.
N He was held in custody for about nine months after arrest N
from 9 April 2021. He was granted bail on 31 December 2021.
O O
According to the DATC report, the defendant started taking
cocaine and ‘Ice’ in 2007. The report also informs that
P prior to his gaol custody on 4 June 2024 (for another P
unrelated offence) he still took both drugs and the urine
specimen collected from him on 5 June 2024 was found to be
Q Q
positive for ‘Ice’ and cocaine.
R Following his release from Tong Fuk Correctional Institution R
on 5 July 2024, he relapsed to drug abuse and took ‘Ice’ and
cocaine again for three more times before his admission to
S Lai Chi Kok Reception Centre on 22 July 2024. The urine S
specimen collected from him on 23 July 2024 was also found
to be positive for ‘Ice’ and cocaine.
T T
I trust that Mr Davies has said all that can be said in
U mitigation for the defendant. However, the report says that U
CRT12/6.8.2024/JC 3 HCCC 4/2023(1)/Sentence
V V
A based on medical examination, clinical observation and the A
facts available including his positive urine test, the
medical officer has come to a conclusion that the defendant
B is a drug dependent. B
In view of the defendant’s weak will-power, the availability
C C
of a place for him, and taking into consideration that drug
abuse is his imminent problem, the DATC report recommended a
D period of compulsory drug addiction treatment, coupled with D
intensive counselling and statutory supervision would be
beneficial to the defendant. He is considered suitable for
E admission to a DATC. E
The defendant’s background report also reveals he received
F F
education up to Form 5. He was led astray by bad influence
around the age of 13 and got involved with drugs. When he
G was 18, he was sent to Guangzhou and worked there for about G
five years. He came back to Hong Kong in early 2019. The
collected information showed the defendant had a long
H history of taking dangerous drugs. The report also stated H
that the defendant had a stable job after living with his
I
girlfriend in January 2024. His girlfriend is supportive of I
him and said he is a responsible person who worked hard to
support her and her children.
J J
Sentence
K The proper approach to sentencing possession of dangerous K
drugs offence is summarised in HKSAR v Lee Chun Man in CACC
L 360/2014 and in HKSAR v Wong Wai Wah, CACC 181/2017. And L
that on a charge of simple possession, the judge is obliged
to adopt a three-stage approach to the assessment of
M sentence as set out in HKSAR v Wan Sheung Sum [2000] 1 HKLRD M
405.
N More recently, the Court of Appeal in Chan Chun Hei [2024] 1 N
HKLRD 118 stated at paragraph 21 that:
O O
“...it is important to recognise that imprisonment is
not always the most appropriate response of the courts
P to those involved in a drug offence for the first time, P
and in appropriate cases the public interest would be
better served by focusing on the rehabilitation of the
Q Q
offender. The principle has been given legislative
force by the Drug Addiction Treatment Centres Ordinance
R (Cap.244).” R
According to both reports, the defendant was unable to quit
S drugs, and it was reported that the defendant was still S
taking drugs during the bail period, and that he was tested
positive for ‘Ice’ and cocaine the day after his conviction
T T
on 23 July 2024.
U U
CRT12/6.8.2024/JC 4 HCCC 4/2023(1)/Sentence
V V
A I note that the defendant has not been sentenced to DATC in A
Hong Kong before. In view of the contents of the DATC
report, I am not going to sentence the defendant to a prison
B term. However, I am of the view that it is in his interest B
and in the public interest that the defendant should receive
cure and treatment in a DATC in order to get rid of his drug
C C
habit which is the root of his problem. I accept the
recommendation contained in the DATC report.
D D
The defendant is sentenced to DATC on both charges and I
also order that the conviction of both charges are to be
E recorded. E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT12/6.8.2024/JC 5 HCCC 4/2023(1)/Sentence
V V
A HCCC 4/2023 A
[2024] HKCFI 2758
IN THE HIGH COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 4 OF 2023
C C
-----------------
D D
HKSAR
E v E
Lee Wai-lung
F F
-----------------
G G
Before: Recorder Maggie Wong, SC
Date: 6 August 2024 at 2.46 pm
H Present: Mr Edward F Le B Laskey, on fiat, for HKSAR H
Mr Oliver Davies, instructed by Wong & Co, for the
I
accused I
Offence: (1) Trafficking in a dangerous drug (販運危險藥物)
(2) Trafficking in dangerous drugs (販運危險藥物)
J J
---------------------------------
K
Transcript of the Audio Recording K
of the Sentence in the above Case
---------------------------------
L L
COURT: The defendant was charged with two counts of trafficking
in dangerous drugs.
M M
On the second day of the trial, the defendant pleaded not
N guilty to trafficking in the drugs as particularised in the N
charges on the indictment but guilty to the lesser charge of
simple possession. The prosecution did not accept that plea
O and the case proceeded to trial. O
At the conclusion of the trial, the defendant was acquitted
P after trial of trafficking offences, but was convicted by P
the jury on the alternative offence of possession of
Q dangerous drugs. Q
After his conviction, and in light of the defence put
R forward, which was the drugs in question were in the R
possession of the defendant for his own consumption, he
having been addicted to the drugs in question for many
S S
years, as required by section 54A of the Dangerous Drugs
Ordinance, I called for a Drug Addiction Treatment Centre
T Report at the hearing on 22 July 2024 as well as a T
background report.
U U
CRT12/6.8.2024/JC 1 HCCC 4/2023(1)/Sentence
V V
A It is clear from the DATC report that the defendant is a A
drug dependant.
B Facts B
The brief facts of the case are as follows. The defendant
C C
was stopped in the staircase of 14th floor, Chungking
Mansion, by police officers in the early hours of the
D morning on 9 April 2021. Upon search, a resealable plastic D
bag containing suspected drugs was found inside the
defendant’s black wallet. Later analysis found it to be a
E solid containing 3.09 grammes of ‘Ice’. This forms the E
subject-matter of Count 1.
F F
After arrest and under caution, the defendant voluntarily
said that, “The bag of stuff is for my own consumption,
G nothing else”. He also said he still had something in the G
hotel room.
H The defendant then agreed to take the police officers to H
Room 910, Hotel Pravo, in Tsim Sha Tsui, situated about five
I
minutes’ walk from Chungking Mansion. In the room, a blue I
coin bag was found, and inside it, there was a digital scale
and two tissue paper wrapping two transparent resealable
J plastic bags later confirmed to contain 12.2 grammes of J
‘Ice’ and in the other 5.68 grammes of a mixture containing
5.33 grammes of cocaine. This forms the subject-matter of
K Count 2. On the bed, a black Gucci shoulder bag containing K
35 transparent resealable plastic bags was found.
L L
Later, a video-recorded interview was conducted with the
defendant on 9 April 2021, he maintained that he knew what
M he had was cocaine and ‘Ice’ and they were for his own M
consumption. He also said:
N a. he bought 14 grammes of ‘Ice’ from someone named Peter N
and it costed about $2,900;
O O
b. he planned to divide the drugs so he could consume it
slowly as he did not want to consume too much at a
P time; P
c. the weighing scale and resealable bags were for
Q Q
dividing it for himself, and he would limit his daily
consumption to no more than 1 gramme. He said he had
R 3 grammes or so on him upon search because he was R
thinking that he would use those drugs for a few days;
S d. he said he had been taking drugs for about 12 to 13 S
years but he quit every now and then. He said he was
habitually consuming ‘Ice’ and cocaine;
T T
e. he said he checked in his room sometime after 10 and
U 11 pm and stayed there by himself. U
CRT12/6.8.2024/JC 2 HCCC 4/2023(1)/Sentence
V V
A A sum of $5,202 cash was found on him, but the officer A
responsible for the search could not recall whether the cash
was found in the defendant’s wallet or from a bag.
B B
The officer who conducted the search was asked whether he
saw personal items belonging to the defendant in Room 910,
C C
to which he said he saw none, or else he would have seized
them and taken them back to the police station as his
D personal property. D
The defendant chose not to give evidence in the trial. He
E relied upon his account given in his video-recorded E
interview, which was admitted into evidence by way of
Admitted Facts.
F F
The drugs seized had a total estimated retail value of about
G $15,000-odd. G
It is also agreed that both cocaine and ‘Ice’ were present
H in the defendant’s urine sample taken the day after his H
arrest, indicating that he had been using ‘Ice’ and cocaine.
I I
The defendant’s claim of possession of the drugs for
self-consumption was consistent with the verdict returned by
J the jury. The court will proceed to sentence him on that J
basis.
K Defendant’s Background and Mitigation K
L The defendant is 34 years old. He admitted in his L
video-recorded interview that he had been a drug abuser for
12 to 13 years. He has no criminal record in Hong Kong at
M the date of the present offences. In 2022, three M
convictions were recorded, of which one was drug-related.
N He was held in custody for about nine months after arrest N
from 9 April 2021. He was granted bail on 31 December 2021.
O O
According to the DATC report, the defendant started taking
cocaine and ‘Ice’ in 2007. The report also informs that
P prior to his gaol custody on 4 June 2024 (for another P
unrelated offence) he still took both drugs and the urine
specimen collected from him on 5 June 2024 was found to be
Q Q
positive for ‘Ice’ and cocaine.
R Following his release from Tong Fuk Correctional Institution R
on 5 July 2024, he relapsed to drug abuse and took ‘Ice’ and
cocaine again for three more times before his admission to
S Lai Chi Kok Reception Centre on 22 July 2024. The urine S
specimen collected from him on 23 July 2024 was also found
to be positive for ‘Ice’ and cocaine.
T T
I trust that Mr Davies has said all that can be said in
U mitigation for the defendant. However, the report says that U
CRT12/6.8.2024/JC 3 HCCC 4/2023(1)/Sentence
V V
A based on medical examination, clinical observation and the A
facts available including his positive urine test, the
medical officer has come to a conclusion that the defendant
B is a drug dependent. B
In view of the defendant’s weak will-power, the availability
C C
of a place for him, and taking into consideration that drug
abuse is his imminent problem, the DATC report recommended a
D period of compulsory drug addiction treatment, coupled with D
intensive counselling and statutory supervision would be
beneficial to the defendant. He is considered suitable for
E admission to a DATC. E
The defendant’s background report also reveals he received
F F
education up to Form 5. He was led astray by bad influence
around the age of 13 and got involved with drugs. When he
G was 18, he was sent to Guangzhou and worked there for about G
five years. He came back to Hong Kong in early 2019. The
collected information showed the defendant had a long
H history of taking dangerous drugs. The report also stated H
that the defendant had a stable job after living with his
I
girlfriend in January 2024. His girlfriend is supportive of I
him and said he is a responsible person who worked hard to
support her and her children.
J J
Sentence
K The proper approach to sentencing possession of dangerous K
drugs offence is summarised in HKSAR v Lee Chun Man in CACC
L 360/2014 and in HKSAR v Wong Wai Wah, CACC 181/2017. And L
that on a charge of simple possession, the judge is obliged
to adopt a three-stage approach to the assessment of
M sentence as set out in HKSAR v Wan Sheung Sum [2000] 1 HKLRD M
405.
N More recently, the Court of Appeal in Chan Chun Hei [2024] 1 N
HKLRD 118 stated at paragraph 21 that:
O O
“...it is important to recognise that imprisonment is
not always the most appropriate response of the courts
P to those involved in a drug offence for the first time, P
and in appropriate cases the public interest would be
better served by focusing on the rehabilitation of the
Q Q
offender. The principle has been given legislative
force by the Drug Addiction Treatment Centres Ordinance
R (Cap.244).” R
According to both reports, the defendant was unable to quit
S drugs, and it was reported that the defendant was still S
taking drugs during the bail period, and that he was tested
positive for ‘Ice’ and cocaine the day after his conviction
T T
on 23 July 2024.
U U
CRT12/6.8.2024/JC 4 HCCC 4/2023(1)/Sentence
V V
A I note that the defendant has not been sentenced to DATC in A
Hong Kong before. In view of the contents of the DATC
report, I am not going to sentence the defendant to a prison
B term. However, I am of the view that it is in his interest B
and in the public interest that the defendant should receive
cure and treatment in a DATC in order to get rid of his drug
C C
habit which is the root of his problem. I accept the
recommendation contained in the DATC report.
D D
The defendant is sentenced to DATC on both charges and I
also order that the conviction of both charges are to be
E recorded. E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT12/6.8.2024/JC 5 HCCC 4/2023(1)/Sentence
V V