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DCCC 1066/2022
C [2023] HKDC 1609 C
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IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1066 OF 2022
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HKSAR
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v
I SOMRIT TANAPOST I
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K Before: His Honour Judge E Lin K
Date: 20 October 2023
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Present: Mr Alexander H F Cheung, counsel on fiat, for HKSAR
M Ms Emma T C Tsang, instructed by C S Chan & Co, M
assigned by the Director of Legal Aid, for the defendant
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Offence: [1] Establishing business while being a person who remains
O in Hong Kong in breach of the limit of stay after having been O
given permission to land in Hong Kong（身為獲准在香港
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入境的人違反逗留期限留在香港開辦業務）
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[2] Breach of condition of stay（違反逗留條件）
R [3] Possession of a dangerous drug（管有危險藥物） R
[4] Possession of apparatus fit and intended for the
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inhalation of a dangerous drug（管有適合於及擬用作吸服
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危險藥物的器具）
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REASONS FOR SENTENCE
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1. The defendant Somrit Tanapost came to Hong Kong on 15
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February 2020. He was permitted to stay until 16 March 2020, (on a visa
G of 30 days) but did not leave within the prescribed period. He was still in G
Hong Kong at about 8 pm on 10 July 2020 in Wan Chai.
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I 2. When he was searched, he had with him a bag of ‘Ice’ (ie I
methamphetamine hydrochloride), the total weight of which was 0.97
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grammes. In addition, he had a plastic bottle with some liquid containing
K traces of ‘Ice’. K
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3. Further investigation revealed that during his stay in Hong
M Kong, he had been using a social platform account to offer sex services to M
other people.
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O O
4. On the above facts, he was charged with:-
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(1) “Establishing business while being a person who
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remains in Hong Kong in breach of the limit of stay
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after having been given permission to land in Hong R
Kong”, contrary to section 38AA(1)(c) and 38AA(2) of
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the Immigration Ordinance; two, breach of condition of
T stay, contrary to section 41 of the Immigration T
Ordinance.
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C (2) “Possession of a dangerous drug”, contrary to section C
8(1)(a) and (2) of the Dangerous Drugs Ordinance.
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E (3) “Possession of apparatus fit and intended for the E
inhalation of a dangerous drug”, contrary to section
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36(1) and (2) of the Dangerous Drugs Ordinance (for
G the bottle containing liquid with traces of ‘Ice’. G
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He pleaded guilty to all four counts and was convicted on the basis of the
I facts admitted. I
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Sentencing Considerations
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5. For the charge of offences under Immigration Ordinance,
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especially in relation to 38AA(1)(a) and (b), there are clear authorities to
M the effect that even on a guilty plea, the offences warrant a sentence of 15 M
months. I see no reason to depart from the existing authorities, although
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the facts in the present case are different from the usual ones. In view of
O the penalties provided in the Ordinance are the same in respect of the O
offences stated in all three sections, I would adopt a 15 months’
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imprisonment for both counts.
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6. There are two charges under different sections of the same
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Ordinance, technically they are independent offences. I take into account
S of the fact that the considerations for both counts are similar, and the 1st S
charge involved certain expertise the computer trade and also some skill in
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management and planning. Taking into account of his pleas, I would order
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6 months of the 2nd count to run consecutive to the 1st, making it a total of
C 21 months. C
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7. In respect of offences relating to possession of dangerous
E drugs and possession of apparatus (the 3rd and the 4th count), there are no E
clear sentencing guidelines. Had the defendant not been sentenced in
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respect of other offences, the law would require a report from the
G Commissioner of Correctional Services in order to determine whether he G
is suitable candidate for the compulsory drug addiction treatment
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programme provided by the department. Since he is sentenced in respect
I of the other offences for the total of 21 months, I do not consider it is I
necessary to order such report.
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K 8. Furthermore, on the practical side, since the defendant is not K
a resident of Hong Kong, it is almost certain that after he has served his
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sentence he will be repatriated to Thailand. Even if he is proved to a drug
M addict and suitable for the compulsory programme, I see no reason why the M
Hong Kong Government should waste further resources on him by helping
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him to get rid of his addiction. As it is a relatively small amount of drugs
O involved, I would adopt a starting point of 3 months for each count to run O
concurrently for the 3rd and the 4th count. By reasons of this plea guilty,
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it is reduced down to 2 months.
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Mitigation
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S 9. The defendant lived with his grandmother in Thailand and S
was a student in aviation business management at a university in Thailand.
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He also worked a part-time job to cover his living expenses and in
C contribution to the living expenses of his grandmother. C
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10. According to the defence counsel, he came to Hong Kong on
E 17 March 2020 for a two-week holiday, during which the pandemic hit E
Thailand and he was unable to return, his university classes and work had
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all stopped. He ran out of money and had to work as a sex worker to pay
G for living expenses in Hong Kong. G
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11. The defendant’s lawyer asked this court to consider a lenient
I sentence so that he could return to Thailand as soon as possible in order to I
continue his studies and to continue to take care of his grandmother.
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K 12. How a person who made HK$2,600 per month as a part-time K
dancer could afford a holiday for two weeks in Hong Kong is beyond me.
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Needless to say, I am sceptical of the defence explanation put forward.
M While the pandemic and the restriction that came with it were not M
something to be expected, according to my recollection at the time Hong
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Kong was still under a lockdown. Therefore, even accepting his defence
O and explanation he was taking a risk he should not have taken. O
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13. Having considered the whole circumstances I do not find any
Q reason for exercising discretion of leniency. I order that the 2 months’ Q
imprisonment in respect of the drug related offences to run consecutive to
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the first two counts of 21 months.
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14. In all, the defendant is to serve a total of 23 months’
C imprisonment. C
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( E Lin )
F District Judge F
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