Drug possession is a serious crime. In sentencing a drug user, the court follows a 3 steps approach which takes into account the latent risk of the drugs finding their way to others. Such a factor can substantially lengthen the term of imprisonment.
While not as serious as drug trafficking, drug possession by a user typically results in a term of imprisonment. Furthermore, the court would consider the latent risk that the drugs found would be redistributed and increase the sentence substantially despite a simple possession charge.
It is well-established that the sentencing of a genuine drug user for simple possession of dangerous drugs should follow a 3 steps appraoch, which is encapsulated by the Court of Appeal in HKSAR v Chan Tai Wah (陳泰華) [2012] 4 HKLRD 674:
| Order | Step |
|---|---|
| 1 | Determine a starting point of between 12 to 18 months imprisonment |
| 2 | Increase the starting point to take into account the latent risk factor |
| 3 | Consider any mitigating factors, such as a guilty plea |
The “latent risk” referred to in step 2 is a risk that the drugs possessed by a user are being redistributed to others and thus also tackling the same mischief of trafficking:
“reflect the risk to society of the drugs being redistributed and finding their way into other hands apart from the offender’s. The latent risk will be determined from all the circumstances in any particular case, including of course the quantity of drugs possessed and the personal circumstances of the offender.”
An example of the latent risk factor can be found in Chan Tai Wah. The appellant admitted to possessing 5.47g of “ice”. While sentencing the appellant, the Court of Appeal adopted a starting point of 15 months and increased the sentence by 9 months. The final sentence was 16 months after a one-third discount for a guilty plea.
The Court of Appeal also referred to HKSAR v Mok Cho Tik [2001] 1 HKC 261 and noted that the starting point of 12-18 months assumed that imprisonment is more appropriate than rehabilitative measures and does not exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. The main factor is in the quantity involved.
Thus, the court can impose a fine, but only in exceptional circumstances. Under the Drug Addiction Treatment Centres Ordinance (Cap 244), an order to the Drug Addiction Treatment Centre (DATC) is one such rehabilitative sentencing option.
Whereas there are actual risks of redistribution, sentencing for simple possession can be substantially increased. Actual drug trafficking, however, is a much more serious offence.
Gordon Chan, Esq
Barrister-at-law, Archbold Hong Kong Editor on Public Health, and Member of the Bar Association's Committee on Criminal Law and Procedure. Specialised in medical, technology and criminal law.
