HCCC88/2020 HKSAR v. YUEN KWOK-KIT AND ANOTHER - LawHero
HCCC88/2020
高等法院（刑事）DHCJ Bruce, SC23/8/2020[2021] HKCFI 2640
HCCC88/2020
A A
HCCC 88/2020
[2021] HKCFI 2640
B B
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C C
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 88 OF 2020
D D
-----------------
E HKSAR E
F
v F
Yuen Kwok-kit (A1)
G G
Li Hung-ha (A2)
H ------------------ H
I Before: DHCJ Bruce, SC I
Date: 24 August 2020 at 9.40 am
Present: Miss Lilly Wong, SPP of the Department of Justice, for
J HKSAR J
Mr Yeung Shak-nung, instructed by Morley Chow Seto,
assigned by DLA, for the 1st accused
K Ms Anita Ma, instructed by Johnnie Yam Jacky Lee & Co, K
assigned by DLA, for the 2nd accused
L Offence: (1) Possession of a dangerous drug (管有危險藥物) L
(against A1)
(2) Trafficking in a dangerous drug (販運危險藥物)
M (against A2) M
(3) Possession of a dangerous drug (管有危險藥物)
N (against A2) N
---------------------------------
O Transcript of the Audio Recording O
of the Sentence in the above Case
---------------------------------
P P
COURT: On 6 May 2019, police officers armed with a search
Q warrant waited outside a flat at Tim Ming House, Wah Ming Q
Estate in Fanling. At about 7.15 pm, Yuen Kwok-kit
(hereafter the 1st accused) opened the doors to these
R residential premises and he was intercepted by the police. R
The officers entered the premises and found Li Hung-ha
S
(hereafter the 2nd accused) inside those premises. S
Police noticed that there were items consistent with
T renovation work all over the floor in the living room of T
the flat.
U U
CRT18/24.8.2020/OW 1 HCCC 88/2020(1)/Sentence
V V
A A
The police conducted enquiries on the 1st accused. He told
them that he had come to the flat to do renovation work for
B the 2nd accused. The 1st accused told the police that at B
the time he was intercepted, he was leaving the premises.
C C
Enquiries were made of the 2nd accused, who told police
that she was the owner of the flat and was living there
D alone. She said that the 1st accused was her friend and D
was present because he was doing renovation work for her.
E The 1st accused was searched. In a sling bag, which he was E
carrying, there were items including two mobile phones, a
F
wallet containing just over $1,000 and some resealable F
plastic bags containing 13.9 grammes of a crystalline solid
containing 13.7 grammes of methamphetamine hydrochloride.
G On being asked by the police what it was, he admitted that G
it was ‘Ice’. He told the police that the ‘Ice’ was
remuneration for the renovation done for “Ha Che”. He
H asserted that they, that is the drugs, were for his own H
consumption.
I I
The 2nd accused was also questioned by the police about the
drugs seized from the 1st accused. After she was arrested
J and cautioned, she told the police “That packet of J
dangerous drug ice you found earlier on was given by me to
him as the renovation fees.”
K K
A search was conducted inside the flat. Two further mobile
L phones were found on a cabinet in the living room. A white L
hollow figure was found on the top of a cabinet in the
bedroom and inside it was found a transparent resealable
M bag containing 10.6 grammes of a crystalline solid M
containing 10.5 grammes of methamphetamine hydrochloride.
The 2nd accused was asked about these drugs and asserted
N N
that she used the drugs for her own consumption.
O The 1st accused submitted to a video recorded interview and O
under caution said that he was earning about $20,000 a
month as a furniture deliverer. He was not prepared to
P answer further questions. P
The 2nd accused submitted to a video recorded interview and
Q Q
indicated that she would not answer questions about the
present case.
R R
The drugs found in the possession of the 1st accused had an
estimated retail of $7,700. The drugs found in the flat
S inside the hollow white container had a value of $5,900. S
T T
Committal Proceedings
U U
CRT18/24.8.2020/OW 2 HCCC 88/2020(1)/Sentence
V V
A A
Both accused were put before a magistrate. The 1st accused
faced a charge of Possession of a dangerous drug, contrary
B to section 8 of the Dangerous Drugs Ordinance; the 2nd B
accused faced a charge of Trafficking in a dangerous drug,
contrary to section 4 of that ordinance. The subject
C C
matter of the 1st charge was the ‘Ice’ found in the
possession of the 1st accused and to which the 2nd accused
D had indicated she had given those drugs as payment for D
renovation works. The 3rd charge, faced by the 2nd
accused, was a charge of Possession of a dangerous drug
E contrary to section 8 of the ordinance. The subject matter E
of this charge was the ‘Ice’ found inside the flat in the
F
white hollow figure. F
On 17 April 2020, both accused pleaded guilty to the
G respective charges levelled against them and they were G
committed to this court for sentence. Both admitted the
Brief Facts, which are to be found at page 70 of the file.
H H
It is also pertinent to note that the 1st accused was
I admitted to bail. The 2nd accused did not apply for bail I
and was remanded in custody.
J J
Antecedents and mitigation
K 1st accused K
L 1st accused is aged 34. According to the antecedent report L
and mitigation offered on behalf of the 1st accused, he is
a transportation worker and part-time decoration worker
M earning about $20,000 a month. He is presently a drug M
user, having started to take ‘Ice’ about 10 years ago, but
weaned himself off ‘Ice’ and was clean for a long period,
N N
but relapsed about something of the order of 6 to 8 months
ago. Counsel for the 1st accused informs me that the
O reason for the relapse was stress. In mitigation, it was O
contended that since the arrest the accused has become
drug-free again. However, a different picture emerges in
P the DATC report. An officer in the Rehabilitation Unit at P
the Lai Chi Kok Reception Centre concluded:
Q Q
“Based on medical observation, clinical observation and
the facts available, the Medical Officer is of the
R opinion that defendant is a drug dependent. In view of R
his weak will-power, the availability of a place in the
Drug Addiction Treatment Centre and taking into
S consideration that drug abuse is his imminent problem, S
a period of compulsory drug addiction treatment
programme coupled with intensive counselling and
T T
supervision would be beneficial to him.”
U U
CRT18/24.8.2020/OW 3 HCCC 88/2020(1)/Sentence
V V
A A
Accordingly, it was recommended that he was considered
suitable for Drug Addiction Treatment Centre.
B B
He has previous convictions for theft and possession of a
dangerous drug in 2010.
C C
The 1st accused is married with three children. The most
D recent arrival was a baby boy, born on 19 May 2020. The D
other two children are aged 9 (he is in Primary 5) and a
daughter in Primary 2. His wife is a housewife, aged 34.
E E
The 1st accused said that part of his motivation for
F
becoming drug-free was that he wanted to be a good husband. F
I accept that. He is remorseful for his conduct. Perhaps
curiously, while the 1st accused asserted his anxiety to
G continue his current family circumstances, he nevertheless G
is recorded as having said to the Lai Chi Kok officer that
he did not want to bother his family members and refused
H permission for those assessing him for his treatment needs H
permission to interview the family members. As the report
I observed “his background information and family opinions on I
his rehabilitation needs could not be fully obtained and
verified as far as possible”.
J J
2nd accused
K K
The 2nd accused is 49. She was born in China. She is
L employed in selling antiques through the internet and has L
been so engaged since 2013. She estimates that she earns
about $15,000 per month in this regard. She is divorced,
M with a son and a daughter who are living her former M
husband. Counsel for the 2nd accused notes that both
children are of mature age and both are very supportive of
N N
their mother. I accept that submission.
O At the time of her arrest, she was living on her own at the O
flat, the subject of the police raid. The 2nd accused is
addicted to ‘Ice’ and has been since 2018. She has one
P minor previous conviction of breaching a condition of stay. P
She attributed her addiction to loneliness and the stresses
of daily living. Counsel for the 2nd accused makes the
Q Q
point that, perhaps unusually, the 2nd accused is something
of a latecomer to drugs.
R R
Sentencing principles
S S
Starting Point - Trafficking
T T
The community of Hong Kong, and as a result, the courts of
Hong Kong, have for many years taken a severe view of drug
U trafficking, particularly in relation to ‘Ice’. This drug U
CRT18/24.8.2020/OW 4 HCCC 88/2020(1)/Sentence
V V
A A
has terrible consequences for the individual. Ridding
oneself of an addiction to ‘Ice’ is, to say the least, an
B arduous process and sadly, history demonstrates that B
attempts to rid oneself of an addiction to ‘Ice’ is fraught
with instances of disappointment. If ever there was
C C
somebody who could testify to that, I guess it would be the
1st accused. The trafficking and possession of ‘Ice’ can
D also have serious consequences for the family close to the D
accused.
E However, there are serious consequences for the community E
as well. One of those consequences involves the deployment
F
of medical and health facilities to help people who have F
become addicted to these drugs. Further, the conduct of
persons affected by ‘Ice’ in private, and more pertinently
G in public, can be quite dangerous. The view of the G
community and the courts is reflected in the nature of the
sentences and the levels traditionally imposed for drug
H trafficking. H
I To reflect the serious view that the courts and community I
take in relation to the trafficking in dangerous drugs, the
courts have provided sentencing guidelines for various
J forms of drugs, including ‘Ice’, which is of course the J
subject of the charge in this case. The maximum penalty
under the law is a fine of $5 million or life imprisonment.
K K
In relation to ‘Ice’, the guidelines were articulated in
L HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. In that case, the L
Court of Appeal suggested guidelines for up to 600 grammes
of ‘Ice’. For between 10 grammes and 70 grammes of ‘Ice’,
M the suggested guidelines are imprisonment for between 7 and M
11 years. The range in question is upon the basis of a
sentence following a conviction after trial. That is the
N N
basis upon which the starting point is always calculated.
O O
Sentencing principles in relation to the Possession of
dangerous drugs
P P
The maximum sentence for possession of dangerous drugs is a
fine of $1 million and, subject to section 54A, to
Q Q
imprisonment for 7 years. For reasons which will shortly
become apparent, section 54A does not have any impact on
R this case any longer. There is and can be no tariff for R
the possession of dangerous drugs. ‘Ice’, when possessed
by an addict, is still an evil and pernicious drug, having
S consequences with families, and the case of the 1st S
accused, as I say, rather demonstrates this proposition.
T T
Nevertheless, there are authorities which guide the
approach to sentence in cases of possession of dangerous
U U
CRT18/24.8.2020/OW 5 HCCC 88/2020(1)/Sentence
V V
A A
drugs. In HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405, the
court identified a three-step approach:
B B
(1) identify the starting point for the sentence;
(2) determine whether there is any (and if so what latent
C C
risk) and determine what, if any, effect such latent
risk may have on the starting point; and
D D
(3) adjust the total sentence to take into account
mitigation.
E E
In HKSAR v Mok Cho Tik [2001] 1 HKC 261, offered a careful
F
review of decisions of Hong Kong courts on the appropriate F
level for sentencing of possession of drugs in the nature
of heroin and ‘Ice’. The court indicated that for
G possession of 15.7 grammes of ‘Ice’, the normal starting G
point would be in the region of 12 to 18 months. The court
then held that what needed to be determined was the latent
H risk factor. The court suggested that the factors such as H
whether the offender was in employment; whether the drugs
I were kept in a place to which others had access; whether I
the offender had previous convictions for trafficking; and
the quantity of drugs in question. In my judgment, there
J may be other factors and the context in which the J
possession occurs and the drug history of the accused could
well be highly relevant. Ultimately, the point made by the
K Court of Appeal was that for the assessment of whether K
there was a latent risk, or the extent of it, was a very
L fact-sensitive matter. L
The matter was further considered in HKSAR v Minney [2011]
M 3 HKLRD 566. In that case, Fok JA reviewed the principles M
governing the assessment of latent risk. It was held that
a properly conducted assessment of this risk in sentencing
N N
a person for simple possession did not violate any human
rights of the sentenced person. The court held that
O assessing the latent risk in any given case upon the basis O
of a propensity to traffic would be inappropriate. The
appropriate way to consider the matter is to consider the
P real risk of some drug, which is the subject of the charge, P
being redistributed and finding its way into other hands
apart from an offender.
Q Q
Discount
R R
The authorities demonstrate that a person who pleads guilty
at the earliest practicable opportunity is ordinarily
S entitled to a discount from the appropriate starting point S
of 33 per cent.
T T
Application of sentencing principles
U U
CRT18/24.8.2020/OW 6 HCCC 88/2020(1)/Sentence
V V
A A
Simple possession on the part of the 1st accused
B In the light of the authorities discussed in the context of B
simple possession of drugs in the nature of ‘Ice’ and
heroin, I have two options:
C C
(1) not to accept the advice of the Rehabilitation Unit of
D the Lai Chi Kok Reception Centre and sentence the D
accused to imprisonment. If I was to do that, I
consider that a sentence of 12 months’ imprisonment
E would be appropriate. E
F
(2) opt for the rehabilitative option. F
I take account of the fact that the 1st accused has only
G one previous conviction for possession of dangerous drugs G
and that was something of the order of 10 years ago. In
his mitigation and in the antecedent report, it is observed
H that he got rid of his addiction and only in recent times H
relapsed. The explanation for that, offered by him, was
I stress. The medical evidence in the DATC report is against I
this conclusion. The 1st accused was leaving the premises
where he had received the drugs as payment for
J redecorating. He told me through his counsel that he was a J
part-time transportation worker and part-time decoration
worker. I accept that as is true. There is no indication
K that the 1st accused was going anywhere but back to his K
home. He made full and immediate admissions to the police,
L including an assertion that the drugs were for his own use. L
I have no reason to disbelieve that. Accordingly, I assess
the latent risk in this case is minimal. I do not propose
M to enhance the sentence of this accused for this offence. M
For reasons which will shortly become apparent, the
assessment of latent risk is a very context-specific
N N
exercise and this will be shortly seen in the context of my
assessment of latent risk in relation to the 2nd accused,
O which I do in a somewhat different way. O
If I was to sentence the 1st accused to imprisonment, on a
P proper application with the appropriate discount for a plea P
of guilty, that would leave the 1st accused with a possible
sentence of 8 months’ imprisonment.
Q Q
However, the report of the Commissioner of Correctional
R Services on the suitability of such person for cure and R
rehabilitation and on the availability of places at an
addiction treatment centre (as defined in the Drugs
S Addiction Treatment Centres Ordinance, Cap 224) is before S
me. I have read the report and I consider it to be
compelling both in terms of the thoughtful examination of
T T
the 1st accused and the conclusions based on that
examination.
U U
CRT18/24.8.2020/OW 7 HCCC 88/2020(1)/Sentence
V V
A A
In my judgment, perhaps particularly because the accused
has not been to DATC before and because of the facilities
B available to a person in the position of the accused, it B
seems to me that detention in such a centre is perhaps not
just the best option, but it is just about the only
C C
sensible option. In this case, the benefits of potential
rehabilitation greatly outweigh the alternative of
D imprisonment for something of the order of 8 months. D
Pursuant to section 4(1) of the Drug Addiction Treatment
Centres Ordinance, Cap 244, I am satisfied that in the
E circumstances of the case, and having regard to the E
character and previous conduct of the 1st accused, it is in
F
his interest and in the public interest that he should F
undergo a period of cure and rehabilitation in a Drug
Addiction Treatment Centre. I order that he be detained in
G an Addiction Treatment Centre. Section 4(4) of that G
ordinance provides that in the event of such an order being
made, that no conviction shall be recorded against the
H accused, the subject of that order, unless in the opinion H
of the court, the circumstances of the offence so warrant
I and the court orders accordingly. I do not think that I
those circumstances exist and no conviction shall be
recorded against the 1st accused.
J J
In making that order I am very conscious of the anxieties
of the accused, as a parent and his wife, who is present in
K court, as a parent, over the position of their child in the K
immediate short-term and over the slightly longer term. In
L my judgment, although the accused may well be exposed to a L
slightly longer period in the DATC, this is an investment
which this accused can embrace with both arms, if he
M chooses, and fix his addiction once and for all. His M
family will not thank me now, but they may thank me, and
more importantly thank the accused, when he comes out of
N N
the Treatment Centre.
O O
2nd accused
P So far as the trafficking charge, I fix a starting point of P
7 years and 1 month. On the application of the 33 per cent
discount, that will leave the accused with a sentence of
Q Q
4 years and 8 months.
R In relation to the simple possession charge, I think the R
quantity would justify a starting point of 10 months.
However, the latent risk must be assessed differently to
S that of her co-accused. The drugs were kept in the same S
premises as the active trafficking. I think there is a
real risk that the drugs left in the premises might well
T T
find themselves into the hands of others. Nothing in this
assessment is concerned with a disguised propensity to
U traffic. Nevertheless, the quantity is small and the 2nd U
CRT18/24.8.2020/OW 8 HCCC 88/2020(1)/Sentence
V V
A A
accused is, herself, an addict. I assess the latent risk
is worthy of an enhancement of 2 months’ imprisonment.
B Reducing this by 33 per cent leaves the 2nd accused facing B
a sentence of 8 months’ imprisonment.
C C
I readily accept that the 2nd accused is a latecomer to
dangerous drugs. But sadly, this court all too often sees
D younger members of the community getting dragged into the D
vortex of dangerous drugs and traffickers having hopes of a
lifetime’s worth of custom. I accept that the motivation
E to resort to drugs was an understandable combination of E
depression and loneliness, and it goes without saying that
F
on no account could drugs ever be the solution in such F
circumstances. The law requires that the 2nd accused be
sent to prison. Obviously, section 54 of the Dangerous
G Drugs Ordinance is inapplicable and I earnestly hope that G
the 2nd accused takes each and every opportunity to get
herself clean of drugs while in prison and comes out facing
H a fresh start. It seems to me that a partly consecutive H
and partly concurrent sentence would meet the justice of
I the case, and I order that 3 months of the sentence of I
possession of dangerous drugs be served consecutively to
the trafficking in dangerous drugs sentence, and that 5
J months of that possession sentence be served concurrently J
and that is the order of the court.
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT18/24.8.2020/OW 9 HCCC 88/2020(1)/Sentence
V V
A A
HCCC 88/2020
[2021] HKCFI 2640
B B
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C C
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 88 OF 2020
D D
-----------------
E HKSAR E
F
v F
Yuen Kwok-kit (A1)
G G
Li Hung-ha (A2)
H ------------------ H
I Before: DHCJ Bruce, SC I
Date: 24 August 2020 at 9.40 am
Present: Miss Lilly Wong, SPP of the Department of Justice, for
J HKSAR J
Mr Yeung Shak-nung, instructed by Morley Chow Seto,
assigned by DLA, for the 1st accused
K Ms Anita Ma, instructed by Johnnie Yam Jacky Lee & Co, K
assigned by DLA, for the 2nd accused
L Offence: (1) Possession of a dangerous drug (管有危險藥物) L
(against A1)
(2) Trafficking in a dangerous drug (販運危險藥物)
M (against A2) M
(3) Possession of a dangerous drug (管有危險藥物)
N (against A2) N
---------------------------------
O Transcript of the Audio Recording O
of the Sentence in the above Case
---------------------------------
P P
COURT: On 6 May 2019, police officers armed with a search
Q warrant waited outside a flat at Tim Ming House, Wah Ming Q
Estate in Fanling. At about 7.15 pm, Yuen Kwok-kit
(hereafter the 1st accused) opened the doors to these
R residential premises and he was intercepted by the police. R
The officers entered the premises and found Li Hung-ha
S
(hereafter the 2nd accused) inside those premises. S
Police noticed that there were items consistent with
T renovation work all over the floor in the living room of T
the flat.
U U
CRT18/24.8.2020/OW 1 HCCC 88/2020(1)/Sentence
V V
A A
The police conducted enquiries on the 1st accused. He told
them that he had come to the flat to do renovation work for
B the 2nd accused. The 1st accused told the police that at B
the time he was intercepted, he was leaving the premises.
C C
Enquiries were made of the 2nd accused, who told police
that she was the owner of the flat and was living there
D alone. She said that the 1st accused was her friend and D
was present because he was doing renovation work for her.
E The 1st accused was searched. In a sling bag, which he was E
carrying, there were items including two mobile phones, a
F
wallet containing just over $1,000 and some resealable F
plastic bags containing 13.9 grammes of a crystalline solid
containing 13.7 grammes of methamphetamine hydrochloride.
G On being asked by the police what it was, he admitted that G
it was ‘Ice’. He told the police that the ‘Ice’ was
remuneration for the renovation done for “Ha Che”. He
H asserted that they, that is the drugs, were for his own H
consumption.
I I
The 2nd accused was also questioned by the police about the
drugs seized from the 1st accused. After she was arrested
J and cautioned, she told the police “That packet of J
dangerous drug ice you found earlier on was given by me to
him as the renovation fees.”
K K
A search was conducted inside the flat. Two further mobile
L phones were found on a cabinet in the living room. A white L
hollow figure was found on the top of a cabinet in the
bedroom and inside it was found a transparent resealable
M bag containing 10.6 grammes of a crystalline solid M
containing 10.5 grammes of methamphetamine hydrochloride.
The 2nd accused was asked about these drugs and asserted
N N
that she used the drugs for her own consumption.
O The 1st accused submitted to a video recorded interview and O
under caution said that he was earning about $20,000 a
month as a furniture deliverer. He was not prepared to
P answer further questions. P
The 2nd accused submitted to a video recorded interview and
Q Q
indicated that she would not answer questions about the
present case.
R R
The drugs found in the possession of the 1st accused had an
estimated retail of $7,700. The drugs found in the flat
S inside the hollow white container had a value of $5,900. S
T T
Committal Proceedings
U U
CRT18/24.8.2020/OW 2 HCCC 88/2020(1)/Sentence
V V
A A
Both accused were put before a magistrate. The 1st accused
faced a charge of Possession of a dangerous drug, contrary
B to section 8 of the Dangerous Drugs Ordinance; the 2nd B
accused faced a charge of Trafficking in a dangerous drug,
contrary to section 4 of that ordinance. The subject
C C
matter of the 1st charge was the ‘Ice’ found in the
possession of the 1st accused and to which the 2nd accused
D had indicated she had given those drugs as payment for D
renovation works. The 3rd charge, faced by the 2nd
accused, was a charge of Possession of a dangerous drug
E contrary to section 8 of the ordinance. The subject matter E
of this charge was the ‘Ice’ found inside the flat in the
F
white hollow figure. F
On 17 April 2020, both accused pleaded guilty to the
G respective charges levelled against them and they were G
committed to this court for sentence. Both admitted the
Brief Facts, which are to be found at page 70 of the file.
H H
It is also pertinent to note that the 1st accused was
I admitted to bail. The 2nd accused did not apply for bail I
and was remanded in custody.
J J
Antecedents and mitigation
K 1st accused K
L 1st accused is aged 34. According to the antecedent report L
and mitigation offered on behalf of the 1st accused, he is
a transportation worker and part-time decoration worker
M earning about $20,000 a month. He is presently a drug M
user, having started to take ‘Ice’ about 10 years ago, but
weaned himself off ‘Ice’ and was clean for a long period,
N N
but relapsed about something of the order of 6 to 8 months
ago. Counsel for the 1st accused informs me that the
O reason for the relapse was stress. In mitigation, it was O
contended that since the arrest the accused has become
drug-free again. However, a different picture emerges in
P the DATC report. An officer in the Rehabilitation Unit at P
the Lai Chi Kok Reception Centre concluded:
Q Q
“Based on medical observation, clinical observation and
the facts available, the Medical Officer is of the
R opinion that defendant is a drug dependent. In view of R
his weak will-power, the availability of a place in the
Drug Addiction Treatment Centre and taking into
S consideration that drug abuse is his imminent problem, S
a period of compulsory drug addiction treatment
programme coupled with intensive counselling and
T T
supervision would be beneficial to him.”
U U
CRT18/24.8.2020/OW 3 HCCC 88/2020(1)/Sentence
V V
A A
Accordingly, it was recommended that he was considered
suitable for Drug Addiction Treatment Centre.
B B
He has previous convictions for theft and possession of a
dangerous drug in 2010.
C C
The 1st accused is married with three children. The most
D recent arrival was a baby boy, born on 19 May 2020. The D
other two children are aged 9 (he is in Primary 5) and a
daughter in Primary 2. His wife is a housewife, aged 34.
E E
The 1st accused said that part of his motivation for
F
becoming drug-free was that he wanted to be a good husband. F
I accept that. He is remorseful for his conduct. Perhaps
curiously, while the 1st accused asserted his anxiety to
G continue his current family circumstances, he nevertheless G
is recorded as having said to the Lai Chi Kok officer that
he did not want to bother his family members and refused
H permission for those assessing him for his treatment needs H
permission to interview the family members. As the report
I observed “his background information and family opinions on I
his rehabilitation needs could not be fully obtained and
verified as far as possible”.
J J
2nd accused
K K
The 2nd accused is 49. She was born in China. She is
L employed in selling antiques through the internet and has L
been so engaged since 2013. She estimates that she earns
about $15,000 per month in this regard. She is divorced,
M with a son and a daughter who are living her former M
husband. Counsel for the 2nd accused notes that both
children are of mature age and both are very supportive of
N N
their mother. I accept that submission.
O At the time of her arrest, she was living on her own at the O
flat, the subject of the police raid. The 2nd accused is
addicted to ‘Ice’ and has been since 2018. She has one
P minor previous conviction of breaching a condition of stay. P
She attributed her addiction to loneliness and the stresses
of daily living. Counsel for the 2nd accused makes the
Q Q
point that, perhaps unusually, the 2nd accused is something
of a latecomer to drugs.
R R
Sentencing principles
S S
Starting Point - Trafficking
T T
The community of Hong Kong, and as a result, the courts of
Hong Kong, have for many years taken a severe view of drug
U trafficking, particularly in relation to ‘Ice’. This drug U
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has terrible consequences for the individual. Ridding
oneself of an addiction to ‘Ice’ is, to say the least, an
B arduous process and sadly, history demonstrates that B
attempts to rid oneself of an addiction to ‘Ice’ is fraught
with instances of disappointment. If ever there was
C C
somebody who could testify to that, I guess it would be the
1st accused. The trafficking and possession of ‘Ice’ can
D also have serious consequences for the family close to the D
accused.
E However, there are serious consequences for the community E
as well. One of those consequences involves the deployment
F
of medical and health facilities to help people who have F
become addicted to these drugs. Further, the conduct of
persons affected by ‘Ice’ in private, and more pertinently
G in public, can be quite dangerous. The view of the G
community and the courts is reflected in the nature of the
sentences and the levels traditionally imposed for drug
H trafficking. H
I To reflect the serious view that the courts and community I
take in relation to the trafficking in dangerous drugs, the
courts have provided sentencing guidelines for various
J forms of drugs, including ‘Ice’, which is of course the J
subject of the charge in this case. The maximum penalty
under the law is a fine of $5 million or life imprisonment.
K K
In relation to ‘Ice’, the guidelines were articulated in
L HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. In that case, the L
Court of Appeal suggested guidelines for up to 600 grammes
of ‘Ice’. For between 10 grammes and 70 grammes of ‘Ice’,
M the suggested guidelines are imprisonment for between 7 and M
11 years. The range in question is upon the basis of a
sentence following a conviction after trial. That is the
N N
basis upon which the starting point is always calculated.
O O
Sentencing principles in relation to the Possession of
dangerous drugs
P P
The maximum sentence for possession of dangerous drugs is a
fine of $1 million and, subject to section 54A, to
Q Q
imprisonment for 7 years. For reasons which will shortly
become apparent, section 54A does not have any impact on
R this case any longer. There is and can be no tariff for R
the possession of dangerous drugs. ‘Ice’, when possessed
by an addict, is still an evil and pernicious drug, having
S consequences with families, and the case of the 1st S
accused, as I say, rather demonstrates this proposition.
T T
Nevertheless, there are authorities which guide the
approach to sentence in cases of possession of dangerous
U U
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drugs. In HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405, the
court identified a three-step approach:
B B
(1) identify the starting point for the sentence;
(2) determine whether there is any (and if so what latent
C C
risk) and determine what, if any, effect such latent
risk may have on the starting point; and
D D
(3) adjust the total sentence to take into account
mitigation.
E E
In HKSAR v Mok Cho Tik [2001] 1 HKC 261, offered a careful
F
review of decisions of Hong Kong courts on the appropriate F
level for sentencing of possession of drugs in the nature
of heroin and ‘Ice’. The court indicated that for
G possession of 15.7 grammes of ‘Ice’, the normal starting G
point would be in the region of 12 to 18 months. The court
then held that what needed to be determined was the latent
H risk factor. The court suggested that the factors such as H
whether the offender was in employment; whether the drugs
I were kept in a place to which others had access; whether I
the offender had previous convictions for trafficking; and
the quantity of drugs in question. In my judgment, there
J may be other factors and the context in which the J
possession occurs and the drug history of the accused could
well be highly relevant. Ultimately, the point made by the
K Court of Appeal was that for the assessment of whether K
there was a latent risk, or the extent of it, was a very
L fact-sensitive matter. L
The matter was further considered in HKSAR v Minney [2011]
M 3 HKLRD 566. In that case, Fok JA reviewed the principles M
governing the assessment of latent risk. It was held that
a properly conducted assessment of this risk in sentencing
N N
a person for simple possession did not violate any human
rights of the sentenced person. The court held that
O assessing the latent risk in any given case upon the basis O
of a propensity to traffic would be inappropriate. The
appropriate way to consider the matter is to consider the
P real risk of some drug, which is the subject of the charge, P
being redistributed and finding its way into other hands
apart from an offender.
Q Q
Discount
R R
The authorities demonstrate that a person who pleads guilty
at the earliest practicable opportunity is ordinarily
S entitled to a discount from the appropriate starting point S
of 33 per cent.
T T
Application of sentencing principles
U U
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Simple possession on the part of the 1st accused
B In the light of the authorities discussed in the context of B
simple possession of drugs in the nature of ‘Ice’ and
heroin, I have two options:
C C
(1) not to accept the advice of the Rehabilitation Unit of
D the Lai Chi Kok Reception Centre and sentence the D
accused to imprisonment. If I was to do that, I
consider that a sentence of 12 months’ imprisonment
E would be appropriate. E
F
(2) opt for the rehabilitative option. F
I take account of the fact that the 1st accused has only
G one previous conviction for possession of dangerous drugs G
and that was something of the order of 10 years ago. In
his mitigation and in the antecedent report, it is observed
H that he got rid of his addiction and only in recent times H
relapsed. The explanation for that, offered by him, was
I stress. The medical evidence in the DATC report is against I
this conclusion. The 1st accused was leaving the premises
where he had received the drugs as payment for
J redecorating. He told me through his counsel that he was a J
part-time transportation worker and part-time decoration
worker. I accept that as is true. There is no indication
K that the 1st accused was going anywhere but back to his K
home. He made full and immediate admissions to the police,
L including an assertion that the drugs were for his own use. L
I have no reason to disbelieve that. Accordingly, I assess
the latent risk in this case is minimal. I do not propose
M to enhance the sentence of this accused for this offence. M
For reasons which will shortly become apparent, the
assessment of latent risk is a very context-specific
N N
exercise and this will be shortly seen in the context of my
assessment of latent risk in relation to the 2nd accused,
O which I do in a somewhat different way. O
If I was to sentence the 1st accused to imprisonment, on a
P proper application with the appropriate discount for a plea P
of guilty, that would leave the 1st accused with a possible
sentence of 8 months’ imprisonment.
Q Q
However, the report of the Commissioner of Correctional
R Services on the suitability of such person for cure and R
rehabilitation and on the availability of places at an
addiction treatment centre (as defined in the Drugs
S Addiction Treatment Centres Ordinance, Cap 224) is before S
me. I have read the report and I consider it to be
compelling both in terms of the thoughtful examination of
T T
the 1st accused and the conclusions based on that
examination.
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In my judgment, perhaps particularly because the accused
has not been to DATC before and because of the facilities
B available to a person in the position of the accused, it B
seems to me that detention in such a centre is perhaps not
just the best option, but it is just about the only
C C
sensible option. In this case, the benefits of potential
rehabilitation greatly outweigh the alternative of
D imprisonment for something of the order of 8 months. D
Pursuant to section 4(1) of the Drug Addiction Treatment
Centres Ordinance, Cap 244, I am satisfied that in the
E circumstances of the case, and having regard to the E
character and previous conduct of the 1st accused, it is in
F
his interest and in the public interest that he should F
undergo a period of cure and rehabilitation in a Drug
Addiction Treatment Centre. I order that he be detained in
G an Addiction Treatment Centre. Section 4(4) of that G
ordinance provides that in the event of such an order being
made, that no conviction shall be recorded against the
H accused, the subject of that order, unless in the opinion H
of the court, the circumstances of the offence so warrant
I and the court orders accordingly. I do not think that I
those circumstances exist and no conviction shall be
recorded against the 1st accused.
J J
In making that order I am very conscious of the anxieties
of the accused, as a parent and his wife, who is present in
K court, as a parent, over the position of their child in the K
immediate short-term and over the slightly longer term. In
L my judgment, although the accused may well be exposed to a L
slightly longer period in the DATC, this is an investment
which this accused can embrace with both arms, if he
M chooses, and fix his addiction once and for all. His M
family will not thank me now, but they may thank me, and
more importantly thank the accused, when he comes out of
N N
the Treatment Centre.
O O
2nd accused
P So far as the trafficking charge, I fix a starting point of P
7 years and 1 month. On the application of the 33 per cent
discount, that will leave the accused with a sentence of
Q Q
4 years and 8 months.
R In relation to the simple possession charge, I think the R
quantity would justify a starting point of 10 months.
However, the latent risk must be assessed differently to
S that of her co-accused. The drugs were kept in the same S
premises as the active trafficking. I think there is a
real risk that the drugs left in the premises might well
T T
find themselves into the hands of others. Nothing in this
assessment is concerned with a disguised propensity to
U traffic. Nevertheless, the quantity is small and the 2nd U
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accused is, herself, an addict. I assess the latent risk
is worthy of an enhancement of 2 months’ imprisonment.
B Reducing this by 33 per cent leaves the 2nd accused facing B
a sentence of 8 months’ imprisonment.
C C
I readily accept that the 2nd accused is a latecomer to
dangerous drugs. But sadly, this court all too often sees
D younger members of the community getting dragged into the D
vortex of dangerous drugs and traffickers having hopes of a
lifetime’s worth of custom. I accept that the motivation
E to resort to drugs was an understandable combination of E
depression and loneliness, and it goes without saying that
F
on no account could drugs ever be the solution in such F
circumstances. The law requires that the 2nd accused be
sent to prison. Obviously, section 54 of the Dangerous
G Drugs Ordinance is inapplicable and I earnestly hope that G
the 2nd accused takes each and every opportunity to get
herself clean of drugs while in prison and comes out facing
H a fresh start. It seems to me that a partly consecutive H
and partly concurrent sentence would meet the justice of
I the case, and I order that 3 months of the sentence of I
possession of dangerous drugs be served consecutively to
the trafficking in dangerous drugs sentence, and that 5
J months of that possession sentence be served concurrently J
and that is the order of the court.
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
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