HKSAR v. HOI KA CHAI

HCCC 277/2023

[2025] HKCFI 5771

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 277 OF 2023

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REASONS FOR SENTENCE

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1.  The jury had found the defendant not guilty of one count of trafficking in dangerous drugs after trial, but guilty of the lesser offence of possession of dangerous drugs.

FACTS

2.  It was admitted at trial that, at about 23:50 hours on 4 May 2022, the defendant was found in possession of 13.4g of a crystalline solid containing 13.3g of methamphetamine hydrochloride, commonly referred to as ‘ice’.  The defendant had just unlocked and got into the driver seat of a private vehicle, when police officers approached and told him to get out.  The drugs were found from a plastic bag that was placed in the open compartment beneath the steering wheel.  

3.  The defendant was arrested and claimed under caution that the drugs was ‘ice’ and that they were for his self-consumption.  

4.  By their majority verdict acquitting the defendant of the trafficking charge, the jury had indicated that they cannot be sure that the defendant was in possession of ‘ice’ for the purpose of supplying to others, or that the defendant’s case that the drugs were for his self-consumption is true, or maybe true.  

PREVIOUS CONVICTION

5.  The defendant was of clear record when he committed the present offence.  He was subsequently convicted of one charge of wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap.212, on 4 October 2024.  Although the defendant committed the wounding offence whilst on bail for the present drug offence, for the purpose of sentencing in the present case, that fact will not be held against him.  

BACKGROUND AND MITIGATION

6.  The defendant is 25 years old, single, his family consists of his parents and his elder brother. His parents divorced in 2015.  The defendant now lives with his mother in Shatin, while his father lives with his elder brother somewhere else in Hong Kong.

7.  The defendant started working after he graduated Form 6.  While he was studying, because of the challenges he had in relation to his power of expression, of understanding and of memorizing, he was registered as a student with Special Education Need (SEN).

8.  A disability card issued by the HK government to the defendant was produced and exhibited as D-1 at trial.  The card is valid permanently, and the type of disability is stated as “Specific Learning Difficulties”.  As a special need student, special arrangements were made for him, such as extra time in examinations for him to understand and answer the questions that would be read out to him.  

9.  The defendant is now working full time as a bar bender 紮鐵工人at the Kai Tak New Emergency Ward啟德新急症 site, where a hospital is being built, next to the Children’s Hospital.

10.  The defendant’s parents wrote in mitigation, blaming themselves for failing to properly supervise their son.  They remember how the defendant found it most difficult completing his secondary education because of his special education needs.  Yet, despite the challenges, the defendant had worked hard upon graduation, showing how a kind, targeted and responsible person he is.  Since the arrest for this case, with the help and support of social workers, they have been encouraging the defendant to turn a new leaf in life.  They see how the defendant continued to work hard as a bar bender to earn a living.  He had also apologized to them many times for his huge mistake, seeking their forgiveness, which they have unreservedly given.  They see that the defendant is remorseful, and wish for leniency so that he may try to get back on to the right track, to be a better person.

DRUG ADDICTION TREATMENT CENTRE (“DATC”) REPORT

11.  As required under s.54A of the Dangerous Drugs Ordinance, a DATC report was ordered to be prepared on the defendant.

12.  The Medical Officer is of the opinion that, as at the time of examination and observation, the defendant is not drug dependent and is considered not suitable for admission to a DATC.

13.  I note that the defendant had disclosed to the officer that he had taken cannabis edibles once in early November 2025.  I am concerned that since the Medical Officer can be perceived as a person who has authority over him by the defendant, and there is a possibility that such a disclosure might not have been made had the defendant been warned of his rights, to enhance his sentence on the basis of this admission untested in court may result in unfairness to the defendant.  Therefore, I will not use this information against the defendant when sentencing him.

SENTENCING

14.  The maximum sentence on conviction upon indictment for the offence of possession of dangerous drugs is that of imprisonment for 7 years and a fine of $1 million.  

15.  Mr. Cesar Lo, counsel for the defendant, refers to the case of HKSAR v Mok Cho Tik CACC 165/2000 where the Court of Appeal adopted a starting point of 18 months for possession of 15.724g of ice before enhancement, and submits that a lower starting point should be adopted for the 13.3g that the defendant was in possession of here.

16.  In relation to the risk of dissemination, Mr. Lo identified the following matters that might support the finding that there was little or no risk, and that there is, therefore, no ground to enhance the sentence on this basis.  

17.  The matters referred to include the fact that the defendant had stated that the drugs were for his self-consumption as soon as he was arrested; that the drug was contained in a single packet; that the evidence of he and his then girlfriend walking separately to the vehicle while he had the drug in his pocket tends to suggest that she did not know about his drug taking, lowering the possibility of him sharing the drugs with her; that the defendant would usually consume drugs at home and in his own bedroom; that he had the financial means to support his drug use and would not have needed to resort to selling on the drugs; and that the defendant has no previous convictions relating to dangerous drugs.  

18.  Mr. Lo, fairly, accepts that since the defendant only indicated his intention to plead guilty to the lesser offence, he should only be entitled to 20 to 25% discount.  He urges the court to grant him a 25% discount.  

19.  Taking into consideration the quantity of drugs involved, bearing in mind the starting point adopted in Mok Cho Tik, I find that a proper starting point is that of 16 months’ imprisonment in the circumstances.  

20.  I accept that the matters put forward by Mr. Lo do suggest that there is no or minimal risk of dissemination.  I find also that, by their verdict, the jury had indicated that they were not sure the defendant was going to supply the drugs to another person.  Having taken those matters and the jury’s indication into consideration, I have decided not to enhance the sentence on the basis of any latent risk of dissemination.  

21.  As for the discount for his guilty plea indication, it would appear that it was never the case that the defence had indicated that they will be contesting the possession of the drugs.  Not much resources would have been expended by the prosecution on preparing to prove the element of possession in the trafficking charge.  Furthermore, counsel Mr. Lo has been economical, efficient and effective throughout his conduct of the trial, reflecting positively on the defendant’s attitude.  As such, I consider that a 25% discount for his guilty plea indication is warranted.

22.  The defendant is, therefore, sentenced to 12 months’ imprisonment for the lesser offence of simple possession of 13.3g of ice.