A A
DCCC 529/2018
[2019] HKDC 589
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 529 OF 2018
C C
----------------------
D D
HKSAR
E v E
Chen Zhizhan
F F
----------------------
G G
Before: HH Judge Casewell
Date: 25 March 2019 at 10.06 am
H Present: Mr Ivan Shiu Kwan-tai, PP of the Department of H
Justice, for HKSAR
I
Mr Lok Hing-wah, of Lok Hing Wah & Co, assigned by I
DLA, for the defendant
Offence: (1) Possession of a dangerous drug (管有危險藥物)
J (2) Possession of apparatus fit and intended for the J
inhalation of a dangerous drug (管有適合於及擬用作吸服危險
K 藥物的器具) K
(3) Importing goods to which the Dutiable Commodities
Ordinance applied (進口《應課稅品條例》適用的貨品)
L (4) Failing to declare to a member of the Customs and L
Excise Service (沒有向香港海關人員申報)
M M
N --------------------- N
Reasons for Sentence
O O
---------------------
P P
1. Defendant has pleaded guilty to four offences:
Q possession of a dangerous drug, possession of the apparatus to Q
consume it, importing goods to which the Dutiable Commodities
R Ordinance applied, and failing to make the necessary declaration R
about those goods.
S S
2. 31 March last year, defendant was intercepted at the
T T
Arrivals Hall, Lok Ma Chau, when he was stopped and searched. In
U
a bag, drugs that we could see in the first charge were found U
CRT31/25.3.2019/ML 1 DCCC 529/2018(1)/Sentence
V V
A together with means of consumption, together with some A
cigarettes that had not been declared as well, a total of 36
B cigarettes. B
C C
3. The drugs are methamphetamine hydrochloride (known as
“Ice”), 2.44 grammes totally. Defendant said they were for his
D D
own consumption and would last about two months. That
E declaration is not, and I do believe cannot be, substantially E
challenged.
F F
4. Initially, I think it would appear the defendant was
G G
charged with trafficking in those drugs, presumably because of
the importation of the drug, and was remanded in custody. He
H H
appears to have been granted bail by a High Court judge on 25
I
February 2019, so he has already spent quite a while in custody. I
J 5. From his background, he is a man of clear record. He J
is now aged 43.
K K
6. I obtained a probation officer’s report on him, an
L L
extensive and helpful report. What I can tell from the report,
the defendant is remorseful, has strong family support, and a
M M
concrete rehabilitation plan. He was stressed; he used the “Ice”
N for relaxation, bought it in Shenzhen and would bring it back to N
consume it in Hong Kong over a period of two months. Also, the
O defendant, of course, as I said, has been in custody for a while O
and appears to have rid himself of the habit during that time in
P P
custody. I am encouraged that on paragraph 6 of the report,
negative findings of dangerous drugs in respect of three urine
Q Q
tests that I ordered on the last occasion. Defendant is
R recommended for probation. R
S 7. I will simply turn now to the principles of S
sentencing.
T T
U U
CRT31/25.3.2019/ML 2 DCCC 529/2018(1)/Sentence
V V
A 8. The most serious offence the defendant faces is the A
possession of the dangerous drug and the possession of the
B apparatus for consumption. The third and fourth charges simply B
involve the failure to declare some 36 cigarettes. The first
C C
offence for that would normally (be?) dealt with by a fine.
D D
9. As far as the drug offence is concerned, the range of
E sentencing is very wide. Possession of a dangerous drug can be E
visited from sentences ranging from an absolute or conditional
F discharge all the way up to lengthy periods of imprisonment. It F
all rather depends on where the defendant falls on the spectrum
G G
of offending or whether he is a long-term drug addict, whether
or not he is suitable for compulsory drug treatment, or, in the
H H
case of this defendant, whether he is suitable for probation
I
services to monitor his life for a while and make sure he I
remains free of drugs.
J J
10. This is a first offence involving the possession of
K the drug. Defendant is a middle-aged man. The quantity of drug K
is 2.44 grammes, which is not a small quantity, but the court
L L
accepts the explanation it was for consumption over a period of
time.
M M
N 11. Normally, in a case where a defendant is convicted of N
a first drug offence, the court will look to a rehabilitative
O sentence. Of course, if that fails, then sentences of compulsory O
drug treatment and later sentences of between 12 to 18 months’
P P
imprisonment may be appropriate, but I am looking at this stage
where the defendant can be dealt with within the community in
Q Q
respect of his drug offences, continue working for his wife and
R his children. R
S 12. This is an available option for this defendant. He is S
recommended for a 15-month probation order, together with
T T
various conditions which should ensure that he remains drug free
during that period. I am told the defendant is ready to give his
U U
CRT31/25.3.2019/ML 3 DCCC 529/2018(1)/Sentence
V V
A consent to that order, and I propose that that will be, in A
respect of the first two offences, the drug offences, that is
B the order I am going to impose, a probation order of 15 months, B
subject to the defendant’s consent.
C C
13. As far as the third and fourth offences are concerned,
D D
I am going to impose a fine on those. There will be a fine of
E $1,000 on each of Charges 3 and 4. E
F 14. Now, as far as the first and second offences are F
concerned, I am going to impose a sentence of 15 months’
G G
probation order. Now, the defendant must listen to this, because
he must give his consent to this order.
H H
I
15. This means you will be under the supervision of a I
probation officer for the next 15 months. You must keep the
J peace and be of good behaviour generally. You must tell your J
probation officer of any change of address or employment. You
K must also attend for interviews with the probation officer as K
and when directed by him or her.
L L
16. There are also the added conditions you must work and
M M
reside as directed by your probation officer. You must abstain
N from possessing or using any illicit dangerous drugs. You must N
submit a random urine test as and when directed by your
O probation officer. You must complete a full course of community O
or residential drug withdrawal treatment as and when directed by
P P
your probation officer.
Q Q
17. Now, if you breach any of those conditions, you can be
R brought back to this court and you can be sentenced again for R
the offence of which you were originally convicted.
S S
COURT: Do you understand all of this?
T T
DEFENDANT: Yes, I do.
U U
CRT31/25.3.2019/ML 4 DCCC 529/2018(1)/Sentence
V V
A COURT Do you consent to be placed on probation for 15 months, A
subject to those conditions?
B B
DEFENDANT: Yes, I do.
C C
18. All right then. I will make the order then:
D D
(1) 15 months’ probation, subject to the conditions
E outlined, on Charges 1 and 2, served concurrently; E
F (2) Charge 3, a fine of $1,000; F
G G
(3) Charge 4, a fine of $1,000.
H H
I suggest that you pay the fine out of your bail amount.
I I
MR LOK: The defendant agrees.
J J
K K
L L
(T Casewell)
M District Judge M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT31/25.3.2019/ML 5 DCCC 529/2018(1)/Sentence
V V
A A
DCCC 529/2018
[2019] HKDC 589
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 529 OF 2018
C C
----------------------
D D
HKSAR
E v E
Chen Zhizhan
F F
----------------------
G G
Before: HH Judge Casewell
Date: 25 March 2019 at 10.06 am
H Present: Mr Ivan Shiu Kwan-tai, PP of the Department of H
Justice, for HKSAR
I
Mr Lok Hing-wah, of Lok Hing Wah & Co, assigned by I
DLA, for the defendant
Offence: (1) Possession of a dangerous drug (管有危險藥物)
J (2) Possession of apparatus fit and intended for the J
inhalation of a dangerous drug (管有適合於及擬用作吸服危險
K 藥物的器具) K
(3) Importing goods to which the Dutiable Commodities
Ordinance applied (進口《應課稅品條例》適用的貨品)
L (4) Failing to declare to a member of the Customs and L
Excise Service (沒有向香港海關人員申報)
M M
N --------------------- N
Reasons for Sentence
O O
---------------------
P P
1. Defendant has pleaded guilty to four offences:
Q possession of a dangerous drug, possession of the apparatus to Q
consume it, importing goods to which the Dutiable Commodities
R Ordinance applied, and failing to make the necessary declaration R
about those goods.
S S
2. 31 March last year, defendant was intercepted at the
T T
Arrivals Hall, Lok Ma Chau, when he was stopped and searched. In
U
a bag, drugs that we could see in the first charge were found U
CRT31/25.3.2019/ML 1 DCCC 529/2018(1)/Sentence
V V
A together with means of consumption, together with some A
cigarettes that had not been declared as well, a total of 36
B cigarettes. B
C C
3. The drugs are methamphetamine hydrochloride (known as
“Ice”), 2.44 grammes totally. Defendant said they were for his
D D
own consumption and would last about two months. That
E declaration is not, and I do believe cannot be, substantially E
challenged.
F F
4. Initially, I think it would appear the defendant was
G G
charged with trafficking in those drugs, presumably because of
the importation of the drug, and was remanded in custody. He
H H
appears to have been granted bail by a High Court judge on 25
I
February 2019, so he has already spent quite a while in custody. I
J 5. From his background, he is a man of clear record. He J
is now aged 43.
K K
6. I obtained a probation officer’s report on him, an
L L
extensive and helpful report. What I can tell from the report,
the defendant is remorseful, has strong family support, and a
M M
concrete rehabilitation plan. He was stressed; he used the “Ice”
N for relaxation, bought it in Shenzhen and would bring it back to N
consume it in Hong Kong over a period of two months. Also, the
O defendant, of course, as I said, has been in custody for a while O
and appears to have rid himself of the habit during that time in
P P
custody. I am encouraged that on paragraph 6 of the report,
negative findings of dangerous drugs in respect of three urine
Q Q
tests that I ordered on the last occasion. Defendant is
R recommended for probation. R
S 7. I will simply turn now to the principles of S
sentencing.
T T
U U
CRT31/25.3.2019/ML 2 DCCC 529/2018(1)/Sentence
V V
A 8. The most serious offence the defendant faces is the A
possession of the dangerous drug and the possession of the
B apparatus for consumption. The third and fourth charges simply B
involve the failure to declare some 36 cigarettes. The first
C C
offence for that would normally (be?) dealt with by a fine.
D D
9. As far as the drug offence is concerned, the range of
E sentencing is very wide. Possession of a dangerous drug can be E
visited from sentences ranging from an absolute or conditional
F discharge all the way up to lengthy periods of imprisonment. It F
all rather depends on where the defendant falls on the spectrum
G G
of offending or whether he is a long-term drug addict, whether
or not he is suitable for compulsory drug treatment, or, in the
H H
case of this defendant, whether he is suitable for probation
I
services to monitor his life for a while and make sure he I
remains free of drugs.
J J
10. This is a first offence involving the possession of
K the drug. Defendant is a middle-aged man. The quantity of drug K
is 2.44 grammes, which is not a small quantity, but the court
L L
accepts the explanation it was for consumption over a period of
time.
M M
N 11. Normally, in a case where a defendant is convicted of N
a first drug offence, the court will look to a rehabilitative
O sentence. Of course, if that fails, then sentences of compulsory O
drug treatment and later sentences of between 12 to 18 months’
P P
imprisonment may be appropriate, but I am looking at this stage
where the defendant can be dealt with within the community in
Q Q
respect of his drug offences, continue working for his wife and
R his children. R
S 12. This is an available option for this defendant. He is S
recommended for a 15-month probation order, together with
T T
various conditions which should ensure that he remains drug free
during that period. I am told the defendant is ready to give his
U U
CRT31/25.3.2019/ML 3 DCCC 529/2018(1)/Sentence
V V
A consent to that order, and I propose that that will be, in A
respect of the first two offences, the drug offences, that is
B the order I am going to impose, a probation order of 15 months, B
subject to the defendant’s consent.
C C
13. As far as the third and fourth offences are concerned,
D D
I am going to impose a fine on those. There will be a fine of
E $1,000 on each of Charges 3 and 4. E
F 14. Now, as far as the first and second offences are F
concerned, I am going to impose a sentence of 15 months’
G G
probation order. Now, the defendant must listen to this, because
he must give his consent to this order.
H H
I
15. This means you will be under the supervision of a I
probation officer for the next 15 months. You must keep the
J peace and be of good behaviour generally. You must tell your J
probation officer of any change of address or employment. You
K must also attend for interviews with the probation officer as K
and when directed by him or her.
L L
16. There are also the added conditions you must work and
M M
reside as directed by your probation officer. You must abstain
N from possessing or using any illicit dangerous drugs. You must N
submit a random urine test as and when directed by your
O probation officer. You must complete a full course of community O
or residential drug withdrawal treatment as and when directed by
P P
your probation officer.
Q Q
17. Now, if you breach any of those conditions, you can be
R brought back to this court and you can be sentenced again for R
the offence of which you were originally convicted.
S S
COURT: Do you understand all of this?
T T
DEFENDANT: Yes, I do.
U U
CRT31/25.3.2019/ML 4 DCCC 529/2018(1)/Sentence
V V
A COURT Do you consent to be placed on probation for 15 months, A
subject to those conditions?
B B
DEFENDANT: Yes, I do.
C C
18. All right then. I will make the order then:
D D
(1) 15 months’ probation, subject to the conditions
E outlined, on Charges 1 and 2, served concurrently; E
F (2) Charge 3, a fine of $1,000; F
G G
(3) Charge 4, a fine of $1,000.
H H
I suggest that you pay the fine out of your bail amount.
I I
MR LOK: The defendant agrees.
J J
K K
L L
(T Casewell)
M District Judge M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT31/25.3.2019/ML 5 DCCC 529/2018(1)/Sentence
V V