HKSAR v. CHEN ZHIZHAN

DCCC 529/2018

[2019] HKDC 589

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 529 OF 2018

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Reasons for Sentence

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1.  Defendant has pleaded guilty to four offences: possession of a dangerous drug, possession of the apparatus to consume it, importing goods to which the Dutiable Commodities Ordinance applied, and failing to make the necessary declaration about those goods.

2.  31 March last year, defendant was intercepted at the Arrivals Hall, Lok Ma Chau, when he was stopped and searched.  In a bag, drugs that we could see in the first charge were found together with means of consumption, together with some cigarettes that had not been declared as well, a total of 36 cigarettes. 

3.  The drugs are methamphetamine hydrochloride (known as “Ice”), 2.44 grammes totally.  Defendant said they were for his own consumption and would last about two months.  That declaration is not, and I do believe cannot be, substantially challenged.

4.  Initially, I think it would appear the defendant was charged with trafficking in those drugs, presumably because of the importation of the drug, and was remanded in custody.  He appears to have been granted bail by a High Court judge on 25 February 2019, so he has already spent quite a while in custody.

5.  From his background, he is a man of clear record. He is now aged 43. 

6.  I obtained a probation officer’s report on him, an extensive and helpful report.  What I can tell from the report, the defendant is remorseful, has strong family support, and a concrete rehabilitation plan.  He was stressed; he used the “Ice” for relaxation, bought it in Shenzhen and would bring it back to consume it in Hong Kong over a period of two months.  Also, the defendant, of course, as I said, has been in custody for a while and appears to have rid himself of the habit during that time in custody.  I am encouraged that on paragraph 6 of the report, negative findings of dangerous drugs in respect of three urine tests that I ordered on the last occasion.  Defendant is recommended for probation. 

7.  I will simply turn now to the principles of sentencing. 

8.  The most serious offence the defendant faces is the possession of the dangerous drug and the possession of the apparatus for consumption.  The third and fourth charges simply involve the failure to declare some 36 cigarettes.  The first offence for that would normally (be?) dealt with by a fine. 

9.  As far as the drug offence is concerned, the range of sentencing is very wide.  Possession of a dangerous drug can be visited from sentences ranging from an absolute or conditional discharge all the way up to lengthy periods of imprisonment.  It all rather depends on where the defendant falls on the spectrum of offending or whether he is a long-term drug addict, whether or not he is suitable for compulsory drug treatment, or, in the case of this defendant, whether he is suitable for probation services to monitor his life for a while and make sure he remains free of drugs. 

10.  This is a first offence involving the possession of the drug.  Defendant is a middle-aged man.  The quantity of drug is 2.44 grammes, which is not a small quantity, but the court accepts the explanation it was for consumption over a period of time.

11.  Normally, in a case where a defendant is convicted of a first drug offence, the court will look to a rehabilitative sentence.  Of course, if that fails, then sentences of compulsory drug treatment and later sentences of between 12 to 18 months’ imprisonment may be appropriate, but I am looking at this stage where the defendant can be dealt with within the community in respect of his drug offences, continue working for his wife and his children.

12.  This is an available option for this defendant. He is recommended for a 15-month probation order, together with various conditions which should ensure that he remains drug free during that period.  I am told the defendant is ready to give his consent to that order, and I propose that that will be, in respect of the first two offences, the drug offences, that is the order I am going to impose, a probation order of 15 months, subject to the defendant’s consent.

13.  As far as the third and fourth offences are concerned, I am going to impose a fine on those.  There will be a fine of $1,000 on each of Charges 3 and 4.

14.  Now, as far as the first and second offences are concerned, I am going to impose a sentence of 15 months’ probation order.  Now, the defendant must listen to this, because he must give his consent to this order.

15.  This means you will be under the supervision of a probation officer for the next 15 months.  You must keep the peace and be of good behaviour generally.  You must tell your probation officer of any change of address or employment.  You must also attend for interviews with the probation officer as and when directed by him or her. 

16.  There are also the added conditions you must work and reside as directed by your probation officer.  You must abstain from possessing or using any illicit dangerous drugs.  You must submit a random urine test as and when directed by your probation officer.  You must complete a full course of community or residential drug withdrawal treatment as and when directed by your probation officer.

17.  Now, if you breach any of those conditions, you can be brought back to this court and you can be sentenced again for the offence of which you were originally convicted.

COURT: Do you understand all of this?

DEFENDANT: Yes, I do.

COURT  Do you consent to be placed on probation for 15 months, subject to those conditions?

DEFENDANT: Yes, I do.

18.  All right then.  I will make the order then:

(1) 15 months’ probation, subject to the conditions outlined, on Charges 1 and 2, served concurrently;

(2) Charge 3, a fine of $1,000;

(3) Charge 4, a fine of $1,000.

I suggest that you pay the fine out of your bail amount.

MR LOK: The defendant agrees.