Offences and sentences in drug-related crimes

According to sections 4 and 4A of the Dangerous Drugs Ordinance, no person shall traffic in a dangerous drug or any substance represented to be a dangerous drug. Finding guilt in the former offence would lead to a fine of $500,000 and imprisonment of 3 years at a minimum; offence of higher gravity would lead to a fine of $5000,000 and imprisonment for life. The latter can amount to liability to a fine of $50,000 to $500,000 and imprisonment of 1 year to 7 years. In HKSAR v Rai Danesh [2005] HKCU 545, the accused was found to traffic ‘ice’. Although the drug was verified not to be real ‘ice’, the drug was held by him to be a dangerous drug, contrary to section 4A.

 

The accusation made under these two sections would first require the prosecutor to prove the act of trafficking. Trafficking of dangerous drugs includes its importation and exportation, procuring, supplying or otherwise dealing in or with a dangerous drug, or possessing the dangerous drug for the purpose of trafficking. From HKSAR v Akhemetzyanova and others [2013] 1 HKC 95, the act must suggest a third party is involved in constituting trafficking. Besides, the prosecutor has to prove the accused’s intention of trafficking the drug; the Court may assess his intention from the case’s time and place and the number of drugs involved. In Lai Kam Fat v HKSAR [2019] 6 HKC 293, even though the accused could not tell the drug was cocaine, proof of his acknowledgment of the drug and the intention to traffic the drug would suffice to establish the charge. It shows that although the accused cannot specifically tell the name and category of the drug involved, proof of his intention to traffic would also be enough for his conviction.

 

According to section 8, no person shall possess, or smoke or ingest a dangerous drug. This section’s offense would lead to 3 to 7 years imprisonment and a fine of $500,000 to $100,000 or even $1,000,000. According to section 36, possessing any pipe, equipment or apparatus intended for the smoking or injection of a dangerous drug may give rise to liability to a fine of $5,000 to $10,000 and imprisonment of 3 years. Yet, as stated in section 54A, only a non-custodial sentence can be imposed by Court in finding guilt of offence of above sections, unless the accused is convicted of another offence and sentenced to imprisonment of more than 9 months, or there is a report from the Commissioner of Correctional Services shows the unsuitability of such accused for cure and rehabilitation. A non-custodial sentence refers to a fine, a probation order and a suspended sentence of imprisonment.

 

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