Drug Offences
Black Money Rolling In
Case in Brief:
Lung, aged 20, frequently went to nightclubs on the Mainland to have fun and to take drugs. He gained the trust of a drug dealer and was allowed to take some drugs back to Hong Kong for sale. Lung invited friends to his home for drug parties.Lung also took some extra cash from an ATM machine. He thought he was enjoying good luck, but is that the case?
Offences discussed
Q & A
What crimes have Lung committed? What are the possible penalties?
Assuming the drugs in question are dangerous drugs within the Dangerous Drugs Ordinance (Chapter 134), by bringing them into Hong Kong Lung has committed the offence of trafficking in dangerous drugs contrary to Section 4 of the Dangerous Drugs Ordinance (Chapter 134).
Trafficking includes bringing dangerous drugs into Hong Kong, even for self consumption, supplying or dealing in dangerous drugs, and possessing dangerous drugs for the purposes of trafficking, that is for supply to others. Lung is in possession of the drugs. He brought them into Hong Kong intending to sell them in Hong Kong. He has trafficked in dangerous drugs.
Severe penalties are imposed upon those who bring drugs into Hong Kong, particularly where they are brought in for sale to others. The maximum punishment is life imprisonment. Prison sentences can be expected even for relatively small amounts of drug. Young age and a previous clear record will count for very little, particularly where the trafficking involves a commercial element.
As an example of likely sentences, a person who traffics between 10 to 50 grammes of ketamine can expect a prison sentence of between 4 to 6 years upon conviction after trial. A person who traffics between 300 to 600 grammes can expect a prison sentence of between 9 to 12 years imprisonment upon conviction after trial.
There will normally be a one-third discount in the term of imprisonment if the defendant pleads guilty. Where a defendant is under 21 years old a Training Centre, Rehabilitation Centre or Detention Centre order could be made depending upon the nature, quantity and value of the drugs and the defendant’s suitability for one or other of those orders. However the courts have made it clear that youth and/or a clear record will not automatically shelter a young offender from imprisonment for trafficking in drugs. This is because of the danger that organised drug traffickers will use young persons to bring drugs into Hong Kong unless appropriately severe sentences are imposed.
By supplying dangerous drugs to his friends during drug parties at his home, Lung has again trafficked in dangerous drugs. He has supplied them with drugs. That he did this at a party and did not charge them for the drugs makes no difference. Trafficking is supplying drugs to other persons.
As the owner, tenant, occupier or person in charge of the premises where the drug parties take place Lung commits another offence under Section 37 of the Dangerous Drugs Ordinance (Chapter 134) by allowing his premises to be used for unlawful trafficking. The trafficking is simply making the drugs available to his guests and allowing the consumption of these drugs by his guests on these premises. Lung will likely face a period of imprisonment because of the supply of drugs to young persons and the regular organization of drug parties.
Have the drug party participants violated the law? If they are under the age of 14, do they have to bear any legal responsibility? What if they are under the age of 16?
The persons who have received drugs from Lung are in possession of those drugs. Section 8 of the Dangerous Drugs Ordinance (Chapter 134) makes it an offence for a person to have a dangerous drug in their possession or to smoke, inhale, ingest or inject any dangerous drugs.
The age of criminal responsibility in Hong Kong is 10 years of age (Section 3 of the Juvenile Offenders Ordinance (Chapter 226)). All persons at Lung’s parties who possess, smoke, inhale, ingest or inject dangerous drugs are criminally liable for their action.
Those who are 11 or 12 years old may be able to shelter behind what is known as “doli incapax”. This means that although they have reached the age of criminal responsibility (which is 10 years old and above), the prosecution must prove that they knew that their actions in possessing, smoking, inhaling, ingesting or injecting dangerous drugs was seriously wrong. In other words they must be shown to have known that what they were doing was more than simply naughty.
Offences committed by persons less than 16 years of age are dealt with in the Juvenile Court. The emphasis in that court is upon long term reform and rehabilitation rather than simply punishment.
Has Lung committed theft? What punishment may he face?
The money does not belong to Lung. An honest person would have given the money to the person who had withdrawn it or at least drawn that person’s attention to the mistake. If that could not be done an honest person would have handed the money to the police. Lung has not done that but has kept the money. He knew it was not his, nor does he have any right to it.
His actions amount to theft. He has dishonestly appropriated the money by keeping it. He intended to permanently deprive the rightful owner of their money.
A prison sentence would not be inappropriate in this situation, though because of Lung’s age, his background and any relevant mitigating circumstances, he could receive a non-custodial sentence, for example a Community Service Order. For more details regarding different sentencing options, please click here.
Is it a violation of law for picking up money on the street without reporting it to the police?
This is what is sometimes known as “stealing by finding”. An honest person would attempt to find the owner or hand the money to a police station. Picking up the money is not in itself an offence. It becomes theft however if the finder dishonestly decides to keep it.