OFFENCES RELATED TO DANGEROUS DRUGS

C. Trafficking in dangerous drugs

I. What constitutes "dangerous drugs"?

Dangerous drugs refer to any of the drugs or substances specified in Part I of the First Schedule to the Dangerous Drugs Ordinance (Cap. 134). Most commonly encountered and abused dangerous drugs include marijuana (cannabis) and related cannabinoids (including cannabidiol (CBD)), cocaine, crack cocaine, ecstasy (MDMA), heroin, ice (methamphetamine hydrochloride), ketamine, opium.  With effect from 18 July 2025, all etomidate and its analogues (space oil) are also added to the list of dangerous drugs. 

They are categorised into four main groups: narcotic drugs, psychotropic substances, benzodiazepines, and new psychoactive substances (NPS). 

Narcotic Drugs 

Primarily opioids such as heroin and morphine, which induce sedation, euphoria, and high addiction potential when injected or smoked. Codeine, a weaker narcotic used as a cough suppressant, can cause drowsiness and dependence when abused. 

Cocaine – a potent stimulant derived from coca leaves, producing intense euphoria and alertness but leading to cardiovascular failure, paranoia, and severe addiction. 
 

Psychotropic Substances 

Includes ketamine, a dissociative anaesthetic that causes delirium, detachment, and motor impairment, and methamphetamine, a stimulant associated with increased energy, paranoia, and psychosis. 

Ecstasy (Methyl​enedioxymethamphetamine or MDMA) – a synthetic stimulant and hallucinogen that heightens mood, empathy, and sensory experiences, but carries risks of dehydration, hyperthermia, and long-term serotonin depletion. 

Cannabis (Marijuana) and cannabis resin (hashish) – derived from the cannabis plant, these substances contain THC (tetrahydrocannabinol), the main psychoactive compound that alters perception, coordination, and memory. Overuse may lead to dependency, reduced cognition, and mental health issues. 

Benzodiazepines 

Examples include diazepam and midazolam, which are prescribed for anxiety and sleep disorders, but misuse can result in hypotonia, coma, and dependence. 

New Psychoactive Substances (NPS) 

Etomidate and its analogues (e.g. metomidate) are synthetic sedatives causing nausea, tremors, and respiratory failure when abused. Other examples include CBD (a cannabinoid), which has been subject to increasing control due to its psychoactive effects and potential for misuse. 

1. What is "trafficking in dangerous drugs"?

Trafficking in dangerous drugs is a serious offence in Hong Kong. 

Three offences related to trafficking in dangerous drugs are:

1. Trafficking (s.4(1)(a) and s.4A(1)(a))
2. Offering to traffic (s.4(1)(b) and s.4A(1)(b))
3. Doing or offering to do an act preparatory to or for the purpose of trafficking (s.4(1)(c) and s.4A(1)(c))

The defendant’s knowledge and/or participation in trafficking is proved by different forms of evidence.  The most usual form of evidence is the defendant’s own admission.  Furthermore, the prosecution may also rely on a number of statutory presumptions to prove knowledge and participation.

1. Intention to traffic, proof of knowledge and participation

It is an element of the offence of trafficking in a dangerous drug that the defendant must have knowledge that a dangerous drug is being trafficked in.  The prosecution is not required to prove that the defendant knows the specific type of dangerous drug being trafficked in. 

The standard is subjective, i.e. the defendant must personally know that the drug in question was present.  This can be proved by evidence with the assistance of some statutory presumptions under section 47 of the Dangerous Drugs Ordinance (Cap. 134): 

A. Physical possession of a drug 

A person who is proved or presumed to have possessed a dangerous drug is presumed to have known about the dangerous nature of the drug, until proven otherwise (section 47(2)). 

B. Physical possession of a container 

A person who is proved to have physically possessed anything containing or supporting a dangerous drug is presumed to have possessed that drug, until proven otherwise (section 47(1)(a)). 

Where a person is handed a container without knowing or suspecting that it contains a dangerous drug, and before he had time to examine the contents he threw it away, he could not be said to be in possession of the dangerous drugs in the container. 

C. Physical possession of the keys of any baggage, briefcase, etc. 

A person who is proved to have physically possessed the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug is presumed to have possessed that drug, until proven otherwise (section 47(1)(b)). 

A storeroom is not a “container” for the purpose of this presumption.  If the dangerous drugs were found in a locked box in a locked lorry, the presumption does not apply if the defendant only had the keys to the lorry but not the box. 

These presumptions have been interpreted by the Court of Final Appeal by remedial interpretation to mean that the defendant only has an “evidential burden”: once the defendant adduced some evidence to the contrary, the burden of proof would be reverted back to the Prosecution to prove the matter presumed beyond reasonable doubt. 

There is no presumption of intention to traffic, meaning there is no presumption that once possession is proved, presumption of trafficking existed. 

2. What are the possible punishments?

Penalty

The maximum penalty for trafficking in a dangerous drug is life imprisonment and a fine of HK$5,000,000 on indictment or 3 years’ imprisonment and a fine of HK$500,000 on summary conviction (section 4(3) of the Dangerous Drugs Ordinance).

Sentencing principles

The Court of Appeal has recently laid down a six-step approach to sentencing in trafficking cases:

   To identify the relevant guidelines band applicable to the quantity of drugs concerned.

   To assess the defendant’s role and culpability based upon the evidence.

   To identify where in the relevant band the defendant came, bearing in mind that it might be necessary to go outside that band whether above or below, given the circumstances of the offence and the role of the defendant.

   Consideration of aggravating factors which might justify enhancement of the starting point.

   Consideration of mitigating factors when assessing the overall discount from the notional sentence bearing in mind that personal circumstances would generally count for little.

   To observe the overall sentence passed to ensure that it was fair, just and balanced.

Sentencing guidelines

Trafficking in dangerous drugs is most usually punished by immediate imprisonment.  The Court of Appeal has prescribed sentencing guidelines on the starting point that should be adopted based on the quantity of different kinds of dangerous drugs, and based on the offender being a mere courier.  

However, if an offender is shown to have played a role higher up in the drug trafficking enterprise hierarchy, the starting point for his sentence will be adjusted upwards.  The different roles that have been identified are courier or storekeeper, actual (or direct) trafficker, manager or organiser, operator or financial controller, and international operator or financial controller.  Furthermore, if the trafficking involved an international element, e.g. bringing dangerous drugs from abroad into Hong Kong, it will be considered an aggravating factor attracting an enhanced sentence. 

     A. Trafficking in cannabis

     B. Trafficking in cocaine

     C. Trafficking in ecstasy (methylenedioxy methamphetamine or MDMA)

     D. Trafficking in heroin

     E. Trafficking in ICE (methamphetamine hydrochloride)

     F. Trafficking ketamine

     G. Trafficking in methaqualone and diazepam

     H. Trafficking in midazolam

     I. Trafficking in N,N – dimethylamphetamine (NNDMA)

     J. Trafficking in opium

    K. Trafficking in Etomidate

That said, the starting point derived from these guidelines do come with discretion. 

1. What is the sentencing approach if the defendant traffics in more than one type of dangerous drug?

If a defendant is convicted of trafficking of more than one type of dangerous drugs, he can be sentenced by the “individual approach”, i.e. by adding up the different lengths of imprisonment for each individual drug.  This approach can create unfairness and/or overly lengthy sentences.  The Court more often adopts the “combined approach”, i.e. to calculate the applicable sentence for the more serious or most serious drug, and then increase the sentence by taking into account the quantities of other less serious drugs.  However, it must also be noted that trafficking in a variety of drugs is a serious aggravating factor justifying an enhanced sentence.

2. Will the Court adjust the starting point downward if part of the dangerous drugs is intended for self-consumption?

The Court would adjust the sentence downward if a significant proportion of the drugs is for the person’s own consumption and not intended for trafficking. The customary discount in this condition is likely between 10% and 25%.  Generally, it is not necessary for the Court to specify the relative amounts or proportions of the drugs for self-consumption save in very broad terms.

However, the Court of Appeal has emphasised that a bare assertion is insufficient.  The defendant must provide some reliable material or evidence to establish to the Court’s satisfaction that part of the dangerous drugs is intended for self-consumption.  In some cases, the sentencing judge will require the defendant to testify under oath to support the assertion.

3. Which sentencing guideline will apply if I believed I was trafficking in a less potent dangerous drug, not the one in fact trafficked?

The Court may take this into account. However, the Court would still first consider the sentencing guidelines for the dangerous drugs actually trafficked and determine the starting point accordingly, and then apply a discount for the genuine mistaken belief held by the defendant.

If the defendant did not take any actual concern for the type of drug being trafficked, there is no discount.

4. What are some aggravating factors and mitigating factors that would lead to adjustment from the starting point derived from the sentencing guidelines?

The Court may adjust the sentence upward if there is/are one or more of the following aggravating factors:

• S.56A expressly provides that the Court may impose a more severe sentence if there is information proving that the offence involves a minor (i.e. a child below the age of 18).  Lack of knowledge of the age of the minor is not a reason not to enhance the sentence;
• Previous similar convictions;
• Offences with an international/cross-border element (e.g. importation and exportation);
• The defendant being an asylum seeker;
• Use of minor to traffic in dangerous drugs; and
• Use of social media, such as: Instagram, for distribution.

The Court of Appeal has repeatedly emphasised that personal circumstances generally count for very little as a mitigating factor.  However, the Court would still consider all the mitigating factors in arriving in an overall discount given to a defendant in sentencing, including:

• Part of the dangerous drugs were for self-consumption;
• The defendant genuinely believed he was trafficking in a less potent dangerous drugs, not the one he actually trafficked;
• Extreme youth;
• Useful assistance to the authority (It used to be considered that a discount will only be given if the assistance provides tangible results such as successful prosecution of other perpetrators or the recovery of a large portion of the proceeds; however, in 2016, the Court of Appealhas extended the sentencing discount to defendants who provide information which could potentially assist or had actually assisted the authorities); and
• Participating in the Father Wotherspoon’s programme to discourage Tanzanians from drug trafficking (Subject to the absolute discretion of the sentencing judge, a discount of no more than 3 months is warranted for this mitigating factor).

A. Trafficking in cannabis

Sentencing guidelines for trafficking in cannabis (herbal cannabis or cannabis resin):

In the case of cannabis oil, the Court may take into account its more damaging effect and adjust sentence upward.

1. Trafficking

Meaning of “trafficking”: 

“trafficking (販運), in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking, and traffic in a dangerous drug (販運危險藥物) shall be construed accordingly” (section 2 of the Dangerous Drugs Ordinance) 

Trafficking in “purported dangerous drug” is also an offence, even if the substance involved is not actually a dangerous drug.  In other words, if the substance is represented or held out by the defendant to be a dangerous drug, he can still be convicted. 

i. Meaning of “importing” 

Importing means to bring or cause to be brought into Hong Kong by land, air or water (section 2). This would include th e situation where a person enters into Hong Kong with a dangerous drug for his self-consumption. A licence is required for dangerous drugs to be imported into Hong Kong. 

ii. Meaning of “exporting” 

Exporting means to take or cause to be taken out of Hong Kong by land, air or water (section 2). This also includes the situation where a person leaves Hong Kong with a dangerous drug for his self-consumption.  A licence is required for exporting dangerous drugs out of Hong Kong (section 12). 

iii. Meaning of “procuring” 

Procuring means to acquire the drugs for a purpose other than personal consumption, such as offering them to another or using them in the manufacture of a variant of the drugs. 

iv. Meaning of “supplying” 

Supplying means the transfer of physical control of the dangerous drugs from one person to another for the purposes of the recipient.  This includes distributing dangerous drugs to others.  Furthermore, the offence of trafficking does not require proof of payment or reward to the persons supplying the dangerous drugs. 

v. Meaning of “dealing in or with” 

Not all possession of a dangerous drug amounts to “dealing in or with” it.  It all depends on the act of dealing and the purpose or use involved.  One must have regard to the circumstances and other factors such as intent, use, and purpose of carrying the dangerous drug. 

To illustrate, storage for subsequent disposal is usually considered as “dealing in or with” the drug because it is a common part of the exercise of drug trafficking.  However, the mere fact of storage, or storage for future own consumption are unlikely to be considered as “dealing in or with” the drugs because these acts do not involve trafficking. 

vi. Meaning of “possessing…for the purpose of trafficking” 

Prior to 1991, the legislation presumed that a defendant in possession of more than a certain quantity of dangerous drugs did so for the purpose of trafficking.  This has already been repealed as from 8 June 1991.  Now, the prosecution is required to prove both physical control of the dangerous drugs (i.e. possession) as well as that the defendant did so for the purpose of trafficking.  However, a substantial quantity of dangerous drugs, especially found with other paraphernalia such as electronic scales, large quantity of resealable plastic bags, large quantity of cash etc. can all lead to the irresistible inference that the dangerous drugs were possessed for the purpose of trafficking rather than self-consumption. 

2. Offering to traffic

It is also an offence itself to offer to traffic in dangerous drugs, even if there is no actual trafficking carried out.  The offence of offering is complete when the offer to traffic is made and regardless of whether the defendant intended to complete the transaction.

Similarly, even if the substance involved is not in fact a dangerous drug, a defendant can still be convicted if he offered to traffic in (i) a substance he believed to be a dangerous drug, or (ii) a substance he represented or held out to be a dangerous drug.

3. Doing or offering to do an act preparatory to or for the purpose of trafficking

An act preparatory to or for the purpose of trafficking is also an offence. There is some overlap between this offence and the offence of trafficking (in the sense of “dealing in or with” drugs).  For example, storing a dangerous drug for the purpose of delivering them at a later stage may be prosecuted by either offence. 

However, there are other acts which more specifically fall under this offence. Examples are: (1) bringing a chemical usually used as a diluting agent of a dangerous drug (e.g. Ice) but the chemical is not in itself a dangerous drug, and (2) introducing a drug dealer to someone who wants to buy drugs. 

Similarly, even if the substance involved is not in fact a dangerous drug, a defendant can still be convicted if he does or offers to do an act preparatory to or for the purpose of trafficking in (i) a substance he believed to be a dangerous drug, or (ii) a substance he represented or held out to be a dangerous drug. 

B. Trafficking in cocaine

Sentencing guidelines for trafficking in cocaine:

C. Trafficking in ecstasy (methylenedioxy methamphetamine or MDMA)

Sentencing guidelines for trafficking in ecstasy:

D. Trafficking in heroin

Sentencing guidelines for trafficking in heroin:

E. Trafficking in ICE (methamphetamine hydrochloride)

Sentencing guidelines for trafficking in ICE:

F. Trafficking in ketamine

Sentencing guidelines for trafficking in ketamine:

G. Trafficking in methaqualone and diazepam

Sentencing guidelines for trafficking in methaqualone powder:

Sentencing guidelines for trafficking in methaqualone tablets:

There are no prescribed guidelines for diazepam, but the Court had imposed a sentence of roughly two-thirds of the sentence of a corresponding quantity of methaqualone for the same amount of diazepam. 

H. Trafficking in midazolam

Sentencing guidelines for trafficking in midazolam powder:

Sentencing guidelines for trafficking in midazolam tablets:

I. Trafficking in N,N – dimethylamphetamine (NNDMA)

Sentencing guidelines for trafficking in N,N – dimethylamphetamine (NNDMA):

There is an appropriate adjustment on account of the difference in potency of the drugs.

J. Trafficking in opium

Sentencing guidelines for trafficking in opium:

II. Statutory authority to procure, supply and possess dangerous drugs and other exemptions 

Section 5(1) of the Dangerous Drugs Ordinance (Cap. 134) establishes the general prohibition against supplying or procuring, or offering to supply or procure, a dangerous drug to any person in Hong Kong. This prohibition is lifted only if the recipient is authorised by or licensed under Part IV of the Ordinance to possess that dangerous drug, and the drug is to be supplied or procured in accordance with the Ordinance and the conditions of their licence. 

Section 22 of the Ordinance grants specific individual authority to be in possession of and to supply dangerous drugs. This authority is limited to what is necessary for the practice or exercise of their profession, function, or employment, and in their capacity as such. These authorised persons include, for example, registered medical practitioners, dentists, and veterinary surgeons. 

Sections 23, 27 and 29 further restrict or extend the scope of such authority. 

Section 25(1) authorises a person to be in possession of a dangerous drug if it was lawfully supplied to them by, for example, a registered medical practitioner, or on a lawfully given prescription.  

However, such authorisation can be negated under section 25(2) if the recipient was also being supplied by another medical practitioner or specified person without disclosing this fact, or if they made a false declaration to obtain the supply or prescription. 

See also section 32 for situations where dangerous drugs are supplied to a person on behalf of a recipient, other than on prescription by a registered medical practitioner.  

In general and subject to specific limitation set out in Part IV of the Ordinance, only certain licensed professionals and lawfully supplied patients may possess dangerous drugs legally. The following classes of people are authorised to procure, supply and possess dangerous drugs: 

1. a registered medical practitioner;  
2. a registered dentist;  
3. a registered veterinary surgeon; 
4. the Chief Pharmacist; 
5. a registered pharmacist or an approved person who is employed or engaged in a prescribed hospital, in a health centre or clinic maintained by the Government or of the Hong Kong Garrison and whose duties in that employment or engagement include the dispensing or supply of medicines for that, or any other such, hospital, health centre or clinic; 
6. a nursing sister for the time being in charge of a ward, theatre or other department of a prescribed hospital, or in a health centre or clinic maintained by the Government or of the Hong Kong Garrison; 
7. a person in charge of a laboratory used for the purposes of research or instruction and attached to a university or to an approved hospital or institution; 
8. a matron of a prescribed hospital; 
9. a Government Chemist; 
10. a person who is not a registered medical practitioner and practises medicine in a clinic exempted under section 8 of the Medical Clinics Ordinance (Cap. 343), as specified under section 22(5A) of the Dangerous Drugs Ordinance, and with the written authorization of the Director of Health. 
11. a person who is lawfully supplied, or prescribed, dangerous drugs by a registered medical practitioner, a registered veterinary surgeon, an authorised seller of poisons, or a person specified by the Director of Health; and 
12. the master of a ship which does not carry on board as part of her complement a registered medical practitioner so far as may be necessary under the Merchant Shipping (Seafarers) Ordinance (Cap. 478) to supply to members of the crew. 

The Director of Health may: 

1. Grant a licence to traffic, offer to traffic, or do or offer to do an act preparatory to or for the purposes of trafficking in a dangerous drug (section 4 of the Dangerous Drugs Ordinance).  
2. Issue import or export licence and import certificate authorizing a person to import into Hong Kong a specified quantity of dangerous drugs within a specified period. (section 10 & 12) Import into or export out of Hong Kong may also require a valid import or export authorisation or diversion certificate (section 11, 12 & 13).  

III. Dangerous drugs offences

A. Possession of dangerous drugs (Section 8 of the Dangerous Drugs Ordinance)  

Under section 8(1)(a) of the Dangerous Drugs Ordinance (Cap. 134), a person must not, unless authorised by the Ordinance or a licence, have a dangerous drug in his or her possession. 

Section 8 also makes it an offence to smoke, inhale, ingest or inject a dangerous drug. 

1. Physical element of possession

As restated by the Court of Appeal in HKSAR v Poon Kiu Yu, the physical element of “possession” of dangerous drugs falls into three categories:  

(1) physical possession (e.g. drugs on person or carried items);  

(2) presumed possession (under section 47(1) of the Dangerous Drugs Ordinance);  

(3) control/constructive possession. 

A. Physical possession of a drug 

A person who is proved or presumed to have possessed a dangerous drug is presumed to have known about the dangerous nature of the drug, until proven otherwise (section 47(2)). 

B. Physical possession of a container 

A person who is proved to have physically possessed anything containing or supporting a dangerous drug is presumed to have possessed that drug, until proven otherwise (section 47(1)(a)). 

Where a person is handed a container without knowing or suspecting that it contains a dangerous drug, and before he had time to examine the contents he threw it away, he could not be said to be in possession of the dangerous drugs in the container.​ 

C. Physical possession of the keys of any baggage, briefcase, etc. 

A person who is proved to have physically possessed the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug is presumed to have possessed that drug, until proven otherwise (section 47(1)(b)). 

Example:  

1. During inspection at Hong Kong International Airport, a suitcase is found containing a glass bottle filled with e-liquid; lab tests confirm it holds etomidate. Any person holding the suitcase key is presumed to possess the dangerous drug and know its nature, unless rebutted.  
2. A storeroom is not a “container” for the purpose of this presumption. 
3. If the dangerous drugs were found in a locked box in a locked lorry, the presumption does not apply if the defendant only had the keys to the lorry but not the box. 

1. Is it a possession if the drug has already been consumed? 

No, the offence of possession of a dangerous drug requires an accused being in physical possession, or exercise physical custody or control of the dangerous drugs.  Once a dangerous drug has been consumed, whether by way of ingestion or other method such as burning, it is no longer in physical existence.  However, containers that held, or apparatus used to consume, the dangerous drugs may still contain trace amount of the dangerous drugs.  Possession of dangerous drugs, even trace amount, can still be prosecuted.  

Furthermore, under section 8 of the Dangerous Drugs Ordinance, smoke, inhale, ingest, or inject a dangerous drug is an offence with a maximum penalty of $100,000 fine and 3 years of imprisonment on summary conviction, $1,000,000 fine and 7 years of imprisonment if convicted on indictment. 

2. If drugs are found in a flat associated with the defendant, does that prove that the defendant is in possession of them? 

If dangerous drugs are found in a flat associated with the defendant, it does not necessarily prove that the defendant is in possession of them. Other circumstances such as other occupants, the defendant’s degree of access, the defendant’s use of the premises may affect whether an irresistible inference can be drawn as to the defendant’s possession of the dangerous drugs. The key is whether the defendant knew of the presence of the drugs and had some control over it.  

However if an owner, tenant, occupier or person in charge of a premises permit or suffer that premises to be used as a divan, or for unlawful trafficking, manufacturing or storage of dangerous drugs, he will be guilty of an offence under section 37 of the Dangerous Drugs Ordinance, and liable to a maximum fine of $5,000,000 and imprisonment for 15 years on indictment, and a maximum fine of $500,000 and imprisonment for 3 years on summary conviction.  An offence under this section also covers principals and agents who knowingly let or agree to let premises to use as a divan or for unlawful trafficking, manufacturing or storage of dangerous drugs. 

2. Mental element of possession 

The mental element of “possession” focuses on a defendant’s subjective knowledge that the items in the defendant’s possession are dangerous drugs, and on the intention to possess those dangerous drugs. 

However, a person does not need to know the exact type of drug. It is generally enough if he knew that what he had was something in the nature of dangerous drugs. 

If a person thought the drug was one dangerous drug but it turned out to be another, that does not affect guilt. It may be relevant to sentence, but not usually to whether the offence is made out. 

Following the Court of Final Appeal’s remedial interpretation in Secretary for Justice v Hii Siew Cheng, statutory presumptions regarding this element impose only an evidential burden on the defendant; once the defendant adduces contrary evidence showing lack of knowledge, the prosecution must prove knowledge beyond a reasonable doubt. 

A. Presumptions of Knowledge  

The law provides specific presumptions where knowledge and possession are assumed unless rebutted by evidence: 

1. Any person proved or presumed to have had a dangerous drug in their possession is further presumed to have known the nature of such drug (section 47(2) of the Dangerous Drugs Ordinance).   
2. A presumption of possession and knowledge may arise if drugs are found in premises occupied by or associated with the defendant (Occupier’s Presumption).   
3. Knowledge is inferred if the drugs formed a common pool from which all parties had the right to draw at will, or if there was a joint enterprise to consume drugs together.  

B. Scenarios of Possession  

According to R v McNamara, the following four propositions determine whether the mental element is satisfied: 

1. A person is not in possession of something put into their pocket or house without their knowledge. 
2. A mere mistake as to the quality of a thing (e.g., believing heroin is cannabis) is insufficient to prevent a finding of possession; the prosecution only needs to prove the accused knew it contained something in the nature of dangerous drugs. 
3. If the defendant genuinely believed the item was of a wholly different nature (e.g., sweets instead of ecstasy), they may lack the required mental element. 
4. Possession of a container leads to a strong inference of possession of its contents. To rebut this, the defendant must adduce sufficient evidence they had no reason to suspect the contents were illicit or had no opportunity to inspect them. 

The court may also consider whether the defendant deliberately turned a blind eye. If an accused fails to inspect a container when a reasonable person would suspect it contains drugs, this factor is used to determine possession under R v Cheung Kwok Kuen. 

3. Sentencing 

There is no mandatory sentencing tariff for simple possession. However, when determining the starting point for sentencing, the most weighty factor is the nature and quantity of the dangerous drug. The courts will also consider a number of factors, such as the drug’s purity. 

Usually the courts will adopt a three-step approach when sentencing possession of dangerous drugs.  First, the courts will determine a starting point between 12 to 18 months’ imprisonment for mere possession for a quantity normally seen in bona fide users, quantity being the main governing factor.  Then the starting point is increased or enhanced to take account of the risk to society of the drugs being redistributed or falling into the hands of others in a particular case, whether the defendant is a persistent offender or has previous convictions for other drug offences to arrive at the total sentence.  Finally, mitigating factors such as guilty pleas, the defendant’s personal background, steps taken to address any problems with drug abuse etc. will be taken into consideration to adjust the final sentence. 

For very small quantities of dangerous drugs clearly for personal consumption, the courts generally adopt a less stringent approach, often considering non-custodial sentences such as fines, probation orders, or community service orders, especially for first-time offenders.  For repeat offenders, however, the courts will often consider sentencing the defendant to Drug Addiction Treatment Centre. 

On conviction upon indictment, the maximum penalty is a fine of $1,000,000 and, subject to section 54A, to imprisonment for 7 years. 

On summary conviction, the maximum penalty is a fine at level 6 (currently $100,000) and, subject to section 54A, to imprisonment for 3 years. 

Section 54A provides that the court must generally consider a report on the offender’s suitability for drug addiction treatment and rehabilitation before imposing a custodial sentence. 

1. If additional illicit substances are discovered in space oil, such as cocaine or methamphetamine, will the sentencing be determined individually for each drug or through a combined assessment? 

Where a combination of dangerous drugs (“cocktail drugs”) is involved, the courts would follow the three-step approach for possession offences, first by adopting the starting range of 12 to 18 months of imprisonment.  Then the courts will consider the variety of dangerous drugs involved and their respective quantity and harm.  The most serious or prevalent drug will be used to determine the base starting point, which will then be increased by considering the quantity of the other less serious drugs.  Because a variety of drugs are involved, the risk of them reaching a wider range of other abusers and the potential intent to provide to other abusers may present an additional aggravating factor in determining the final sentence. 

B. Possession of pipes, equipment, etc. For the smoking, inhalation, ingestion or injection of a dangerous drug 

Possessing any pipe, equipment or apparatus fit and intended for the smoking, inhalation, ingestion or injection of a dangerous drug is an offence under section 36 of the Dangerous Drugs Ordinance (Cap. 134).  Some equipment, such as syringes and pipes, can be readily used for consuming dangerous drugs, even when they have innocent uses.  Other apparatus may be home-made, such as “ice pots”, which are commonly found and made from plastic bottles and straws.  Often, these apparatus will be examined by Government Chemist for residues or trace amount of dangerous drugs left behind after consumption with these apparatus. The circumstances of their discovery (such as in a divan) and other things found along with them (such as empty drug packaging and scales) may support the inference that these apparatus are fit and intended for the consumption of dangerous drugs. Government Chemists may also provide expert opinion on whether such an apparatus is fit or intended for consuming dangerous drugs. 

Sentencing 

The maximum penalty is a fine of $10,000 and imprisonment for 3 years.  The court may also consider sentencing the offender to a Drug Addiction Treatment Centre after calling for a report on the suitability of drug addiction treatment for the offender. 

Aggravating factors in sentencing for this offence include the display of drug paraphernalia in a public place, or intended sharing of equipment. 

Exemptions 

Under section 27 of the Dangerous Drugs Ordinance, the following classes of people are authorised by law to have in his possession equipment or apparatus fit and intended for the injection of dangerous drugs: 

1. a registered medical practitioner;  
2. a registered dentist;  
3. any person employed or engaged in a prescribed hospital, in a health centre or clinic maintained by the Government; 
4. any person employed or engaged in a clinic of the Hong Kong Garrison; 
5. any person specified by the Director of Health; 
6. any person who is on the direction of a registered medical practitioner to inject the dangerous drug into himself for the purposes of medical treatment; and 

7. any person who is on the direction of a person specified by the Director of Health to inject a specified dangerous drug into himself for the purposes of medical treatment. 

    

K. Trafficking in Etomidate 

Currently, there are no sentencing guidelines applicable for trafficking in etomidate. However, considering its seriousness, prevalence, nature, harm profile, abuse potential, lethal potency, etc., it is likely to be treated as comparable to ecstasy or ketamine.    

3. Other relevant prohibitions/offences 

It is an offence to traffic, or offer to traffic, or do or offer to do an act preparatory to or for the purposes of trafficking, in any substance represented or held out by him to be a dangerous drug when it is not in fact a dangerous drug.  The maximum sentence is a fine of $500,000 and imprisonment of 7 years if tried on an indictment, or a fine of $100,000 and imprisonment of 1 year if on summary conviction.  

It is also an offence to supply or procure, or offer to supply or procure, a dangerous drug to or for any person in Hong Kong under section 5 of the Dangerous Drugs Ordinance.  The following situations are the statutory exceptions: 

1. The person receiving or procuring from is authorised or licensed by the Ordinance to be in possession of that dangerous drug; 
2. The supply or procurement was in accordance with the Ordinance; and 
3. If the person is licensed under the Ordinance to possess the dangerous drug, the supply or procurement is in accordance with the conditions of his licence. 

Under section 5(3) of the Ordinance, the administration of a dangerous drug would not be considered as supplying the dangerous drug if it is: 

1. by or under the direct supervision of, and in the presence of a registered medical practitioner; 
2. by or under the direct supervision of, and in the presence of a registered dentist in the course of dental treatment; 
3. by a nursing sister in charge of a ward, theatre, a prescribed hospital, or in a health centre or clinic maintained by the Government or of the Hong Kong Garrison acting on the instructions of a registered medical practitioner, to a patient of that ward, theatre, department, health centre or clinic; 
4. a specified dangerous drug by or under the direct supervision of, and in the presence of a specified person in the course of medical treatment in a specified clinic. 

An offence under section 5 of the Ordinance differs from trafficking in a dangerous drug under section 4 in that trafficking under section 4 covers importing into or exporting out of Hong Kong, procuring, supplying or dealing in or with a dangerous drug.  It targets the illicit import, distribution, movement and trade of dangerous drugs.  Section 5 offence, on the other hand regulates the legal, controlled supply of drugs intended for medical or scientific use, preventing them from being diverted to the illicit market. 

Trafficking in dangerous drugs under section 4 of the Ordinance attracts a much higher maximum penalty of $5,000,000 in fine and life imprisonment, while the maximum penalty for the section 5 offence is a fine of $100,000 and 15 years of imprisonment. 

1. Do the sentencing guidelines for trafficking in actual dangerous drugs apply to an offence of trafficking in a purported dangerous drug?

No, the same sentencing guidelines do not apply to trafficking in a purported dangerous drug under section 4A of the Dangerous Drugs Ordinance (Cap. 134), which is treated as a distinct and less serious offence than actual trafficking under section 4(1)(c). 

Section 4A, introduced in 1990, targets the sale of substances purported to be dangerous drugs and carries a maximum penalty of 7 years' imprisonment, indicating legislative intent for custodial sentences but well below the maximum life sentence for section 4 offences. Courts draw a clear distinction between an accused who genuinely believes they are selling real dangerous drugs, contrary to section 4(1)(c), and one who knowingly sells fakes, which constitutes the section 4A offence (see HKSAR v Li Oi-yee). The former is manifestly more serious. 

 
HKSAR v Cheng Ling-ling illustrates this for section 4(1)(c), which concerns the trafficking of purported drugs which the defendant believed to be real. The court granted a discount in recognition of the “no harm” factor, as fake substances caused no actual public damage. 

D. Manufacturing dangerous drugs 

It is an offence to manufacture, or to do an act preparatory to or for the purpose of manufacturing a dangerous drug unless with a licence granted by the Director of Health.   

The term “manufacture” when used in relation to a dangerous drug is broadly defined in section 2 of the Dangerous Drugs Ordinance (Cap. 134) to include “any act connected with making, adulterating, purifying, mixing, separating or otherwise treating a dangerous drug”. 

This definition covers not only the complete production of a dangerous drug from raw materials but also processes that modify or purify existing dangerous drugs.  But it is not usually brought against an offender who is in simple possession of dangerous drugs and manufactures them in a purely technical sense for his own consumption. 

Section 45 of the Ordinance introduces a presumption regarding the use of dangerous drug manufacturing apparatus. It provides that “Any person who is proved to have been manufacturing or doing an act preparatory to the manufacture of a dangerous drug shall, until the contrary is proved, be presumed to have known the nature of such drug.” 

To combat the illicit manufacture of dangerous drugs, Hong Kong also controls the chemicals used as precursors. See section 2A of the Control of Chemicals Ordinance (Cap. 145). 

Sentencing 

The maximum sentence is a fine of $500,000 and imprisonment for life.  Manufacturing a dangerous drug is considered as the most serious of all drug-related offences. 

While the sentencing starting point for trafficking in dangerous drugs is mainly determined by the quantity of drugs involved, in manufacturing dangerous drugs cases, the quantity of drugs seized is an indicator of the scale of the operation and not the sole or dominant consideration in determining the sentencing starting point.   

Factors that will be taken into consideration include the quantity and purity of the finished product or capable of being manufactured even if the process was incomplete, the scale of operation, the capacity of the equipment found, the output of the drugs at the manufacturing station, and the role played by the offender. 

E. Cultivation of and dealing in cannabis plant and opium poppy

Section 9 of the Dangerous Drugs Ordinance (Cap. 134) prohibits the following activities in relation to any plant of the genus cannabis or the opium poppy: 

1. cultivation of cannabis except Government Chemists who, in the capacity of such, and as may be necessary for the exercise of his employment; 
2. supply or procure, or offer to supply or procure; 
3. deal in or with, or offer to deal in or with; 
4. import into or export from Hong Kong, or do any act preparatory to or for the purpose of importing or exporting; 
5. possession unless it is in transit from a country from which it may lawfully be exported to another country into which it may lawfully be imported (see section 14 of the Ordinance). 

Sentencing 

The maximum penalty for cultivation of or dealing in cannabis and opium poppy is a fine of $100,000 and imprisonment for 15 years. 

Sentencing factors include: 

1. Role of Defendant (ascending aggravation) 
2. Cultivators – namely tending the plants on instructions; 
3. Managers or operators – doing their tasks on instructions including making arrangements for the plants to be cultivated and making rental payments; 
4. Organisers – setting up such operations;  
5. Severe sentences for those who control a large network of such operations than those for organisers. 
6. Cultivation modes (ascending aggravation) 
7. involving no element of regular supply of any kind; 
8. the cultivation of cannabis plants was for the offender’s own use and was not an overall commercial operation for profit but did involve supply to others; 
9. the operation was designed for profit. 
10. the personal circumstances, character and any criminal history of the defendant are relevant factors; and  
11. unlawful abstraction of electricity involved in the operation constitutes an aggravating factor. 

Sentencing guidelines for cultivation in cannabis (estimated annual yield in grammes): 

F. Divan keeping & responsibility of owners, tenants, etc. Of any place or premises used as a divan

Divan Keeping 

Under section 35 of the Dangerous Drugs Ordinance, it is an offence to open, keep, manage or assist in the management of a divan.  A divan is defined as any place or premises open, kept or used whether on one occasion or more than one occasion for the smoking, inhalation, ingestion or injection of a dangerous drug.  The dangerous drugs can be sold in a divan, a price can be charged for the consumption of the dangerous drugs in the divan, or a benefit or advantage can be derived by the people running the divan for the consumption of dangerous drugs.  This offence targets those who are actively involved in the operation and management of a divan and knowledge of the premises being used as a divan can be readily proven by the defendant’s involvement. 

Sentencing  

The maximum penalty for keeping a divan is a fine of $5,000,000 and imprisonment for 15 years if tried on an indictment.  On a summary conviction, the maximum sentence is a fine of $500,000 and imprisonment for 3 years. 

Permitting premises to be used as divan etc. 

A separate offence is found under section 37 of the Ordinance where an owner, tenant, occupier or person in charge of any premises is criminally liable for permitting or suffering that premises to be used as a divan, or for unlawful trafficking, manufacturing or storage of dangerous drugs. 

The section 37 offence also covers principals and agents who knowingly let or agree to let premises to use as a divan or for unlawful trafficking, manufacturing or storage of dangerous drugs. 

Conviction for section 37 offence attracts a maximum fine of $5,000,000 and imprisonment for 15 years on indictment, and a maximum fine of $500,000 and imprisonment for 3 years on summary conviction.   

G. Participation in dangerous drugs offences outside of Hong Kong

Normally, Hong Kong criminal courts only have jurisdiction over criminal acts that were committed within Hong Kong’s geographical boundaries,  This jurisdictional limit can be extended by specific legislation, such as the Criminal Jurisdiction Ordinance (Cap. 461) empowering Hong Kong criminal courts to try criminal conduct committed overseas.   

Section 40 of the Dangerous Drugs Ordinance (Cap. 134) makes it an offence triable in Hong Kong courts if a person in a place outside of Hong Kong aids, abets, counsels, procures, or attempts to commit the trafficking or manufacturing of dangerous drugs where such trafficking or manufacturing is also an offence at that place. 

Sentencing 

For the offences relating to false declaration or statement, the maximum sentence is a fine of $10,000 and imprisonment for 3 years. 

For the offence of aiding, abetting, counselling, or procuring the trafficking or manufacturing of dangerous drug in a place outside of Hong Kong, the maximum penalty is a fine of $100,000 and imprisonment of 15 years if tried on an indictment.  On a summary conviction, the maximum sentence is a fine of $100,000 and imprisonment for 3 years. 

H. Dealing with property known or believed to represent proceeds of drug trafficking 

Section 25 of the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405) makes it an offence to deal with property that the offender knows or has reasonable grounds to believe that such property in whole or in part directly or indirectly represents any person’s proceeds of drug trafficking offences. It is closely related to the offence of “money laundering”, i.e. dealing with property known or believe to represent proceeds of indictable offence under section 25 of the Organised and Serious Crimes Ordinance (Cap. 455).  

“Drug trafficking offences” is defined widely and includes trafficking in dangerous drug (section 4 of the Dangerous Drugs Ordinance), trafficking in purported dangerous drug (section 4A), supplying or procuring a dangerous drug to or for unauthorised persons or unlicensed persons (section 5), manufacturing dangerous drugs (section 6), cultivating or dealing in cannabis or opium poppy (section 9), keeping or managing a divan (section 35), permitting premises to be used for trafficking, manufacturing or storage of dangerous drugs (section 37), conspiring with others, inciting others, attempting, aiding abetting counselling or procuring others to commit these offences. 

It is however not an offence if a person knows of or suspects that any property in whole or in part represents proceeds of, or used in connection with, or intended to be used in connection with drug trafficking offences, he discloses that knowledge or suspicion together with any matter on which that knowledge or suspicion is based to a police officer or the Customs and Excise Department, before he deals with that property. 

This offence is designed to cover both the offender who committed the serious drug offences and any other person who later deals with the proceeds of the offence.  The criminal act is completed with the dealing with the property.  It is not necessary for the prosecution to prove that the property in fact represented proceeds of drug trafficking.  In dealing with the property, it must be proved that the defendant knew or had reasonable grounds to believe that the property represented proceeds of drug trafficking offences. 

Knowledge is usually proved by the offender’s involvement with the drug trafficking offences or by his own admission that he knew the property was proceeds of drug trafficking offences.  Deliberately turning a blind eye to the obvious or refraining from inquiry may allow the court to draw the irresistible inference that the offender knew that the property was such proceeds. 

For “reasonable grounds to be believe”, it needs to be shown that, based on the facts and circumstances known to the offender, any reasonable person who shared such knowledge would be bound to believe that the property was tainted. 

Sentencing  

The maximum penalty for dealing with proceeds of drug trafficking is a fine of $5,000,000 and imprisonment of 14 years if tried on an indictment.  On a summary conviction, the maximum sentence is a fine of $500,000 and imprisonment for 3 years. 

Imprisonment upon conviction for this offence is almost inevitable even for a first offender. 

Restraint and Confiscation of Proceeds of Drug Trafficking 

A conviction for trafficking in dangerous drug (section 4), trafficking in purported dangerous drug (section 4A), supplying or procuring a dangerous drug to or for unauthorised persons or unlicensed persons (section 5), manufacturing dangerous drugs (section 6), cultivating or dealing in cannabis or opium poppy (section 9), keeping or managing a divan (section 35), permitting premises to be used for trafficking, manufacturing or storage of dangerous drugs (section 37), and dealing with property known or believed to represent proceeds of drug trafficking will permit the Department of Justice to apply to the Court of First Instance or the District Court to restrain and confiscate realisable property of the person convicted. 

A restraint order may be made where proceedings have been instituted against the defendant, before there is a conviction.  It prohibits the dealing with the realisable property, subject to such conditions and exceptions as may be specified in the court order.   Once an order is made, the Court of First Instance may appoint a receiver to take possession and manage the property subject of the order. The court may also order the person subject to the order to disclose to the court all the assets he holds, and the source of the assets, covering a period of up to 6 years before the date of the order. 

A charging order can also be made by the Court of First Instance on realisable property for securing payment to the HKSAR Government. It is usually made at the time when a restraint order is made and that there are assets such as real property, stocks and shares that need to be charged. 

A person affected by a restraint order or charging order may apply to the Court of First Instance to discharge or vary the order.  Variation is usually applied for to make allowance for legal fees and his/his dependants’ ordinary and reasonable living expenses, not dictated by the person’s previous lifestyle.  The applicant for such a variation must satisfy the court that he has no other assets to pay for these expenses. 

The prosecution can apply for a confiscation order in proceedings before the Court of First Instance or the District Court when a person is to be sentenced for one or more serious drug offences.  The purpose of the confiscation is to place the offender into the financial position in which he would have found himself if he had not received his proceeds of drug trafficking.  The court will consider the amount of benefit obtained by him and not merely profits. 

Upon the making of a confiscation order, the court will stipulate in the order the amount the defendant is liable to pay and the period within which it is to be paid. A period of imprisonment the defendant is to serve if any of that amount is not paid within the set period is also set out in the order.  The prosecution and the defendant can apply to vary the confiscation order, which must be made within 6 years from the date of the confiscation order. 

I. Driving a motor vehicle under the influence of drugs

a. Driving motor vehicle without proper control under the influence of specific illicit drug (section 39J of the Road Traffic Ordinance (Cap. 374))

It is an offence to drive, attempt to drive, or in charge of a motor vehicle on any road while under the influence of illicit drugs specified in Schedule 1A of the Road Traffic Ordinance to such an extent as to be incapable of having proper control of the motor vehicle.  These specified illicit drugs are heroin, ketamine, methamphetamine, cannabis, cocaine, and ecstasy (MDMA).  

If the circumstances at the material time were such that there was no likelihood of the accused driving the motor vehicle so long as he remained under the influence of the specified illicit drug to such an extent as to be incapable of having proper control of the motor vehicle, he is taken not to have been in charge of a motor vehicle.  For example, a person is asleep in the motor vehicle but the ignition key was in the safe-keeping of someone else, or the circumstances was that it was clear that the accused would not be driving.  This defence usually applies to the “being in charge of a motor vehicle” limb of the offence.  

A person is considered to be under the influence of a specified illicit drug to such an extent as to be incapable of having proper control of the motor vehicle if his ability to drive properly is for the time being impaired and the concentration of the specified illicit drug present in his blood or urine would usually result in a person being unable to drive properly.  This is usually proved by the accused’s manner of driving, his physical condition, the report of any a doctor having conducted an examination on the accused, or by the written opinion of an authorised police officer having carried out an Impairment Test on the accused. 

It is a defence to this offence if the accused can prove that the specified illicit drug present in his blood or urine was prescribed for, administered, or supplied to him by a medical practitioner, registered dentist, registered pharmacist, or someone acting under their direction or supervision, that he did not know and could not reasonably have known that the lawfully obtained specified illicit drug would render him incapable of having proper control of a motor vehicle if taken in accordance with advice, and that he had consumed the drug in accordance with the advice. 

Sentencing 

The maximum penalty is a fine of $25,000 and imprisonment for 3 years if tried on an indictment.  On a summary conviction, the maximum sentence is a fine of $10,000 and imprisonment for 6 months on first offence, and a fine of $25,000 and imprisonment for 12 months on subsequent offences. 

If 5 years have passed since the last conviction for the same offence, or an offence under section 39K, 39L, 39O(1) (failure to undergo preliminary drug test), or 39S (failure to provide specimen of blood or urine), the court may deal with the offence as if it is a first offence. 

There is a mandatory disqualification from driving upon conviction for this offence.  On first conviction, the disqualification period is not less than 5 years.  On subsequent conviction, the disqualification period is not less than 10 years. The court may order a shorter period of disqualification if there are special reasons. Special reasons must be special to the facts constituting the particular case, amounting to mitigating or extenuating circumstances not providing a defence to the charge but directly connected with the commission of the offence that the court should properly take into consideration when imposing punishment.  Circumstances peculiar to the offender is not a special reason. 

However, if the offender has been convicted of the same offence previously and having regard to the circumstances of the offending and the behaviour of the offender, and if the court takes the view that it is undesirable for the offender to continue to be allowed to drive a motor vehicle, it may disqualify the offender for life. 

Usually, the court will order that the offender complete a driving improvement course at his own cost before he can drive again. 

b. Driving motor vehicle with any concentration of specified illicit drug (section 39K of the Road Traffic Ordinance (Cap. 374))

It is an offence to drive, attempt to drive, or in charge of a motor vehicle on any road while any concentration of illicit drugs specified in Schedule 1A of the Road Traffic Ordinance is present in the offender’s blood or urine.  These specified illicit drugs are heroin, ketamine, methamphetamine, cannabis, cocaine, and ecstasy (MDMA).  

Under section 39K(8) of the Ordinance, if the circumstances at the material time were such that there was no likelihood of the accused driving the motor vehicle so long as any concentration of a specified illicit drug was present in his blood or urine, he is taken not to have been in charge of a motor vehicle.   For example, a person is asleep in the motor vehicle but the ignition key was in the safe-keeping of someone else, or the circumstances was that it was clear that the accused would not be driving.  This defence usually applies to the “being in charge of a motor vehicle” limb of the offence. 

It is a defence to this offence if the accused can prove that the specified illicit drug present in his blood or urine was prescribed for, administered, or supplied to him by a medical practitioner, registered dentist, registered pharmacist, or someone acting under their direction or supervision, that he did not know and could not reasonably have known that the lawfully obtained specified illicit drug would render him incapable of having proper control of a motor vehicle if taken in accordance with advice, and that he had consumed the drug in accordance with the advice. 

Sentencing 

The maximum penalty is a fine of $25,000 and imprisonment for 3 years if tried on an indictment.  On a summary conviction, the maximum sentence is a fine of $10,000 and imprisonment for 6 months on first offence, and a fine of $25,000 and imprisonment for 12 months on subsequent offences. 

If 5 years have passed since the last conviction for the same offence, or an offence under section 39J, 39L, 39O(1) (failure to undergo preliminary drug test), or 39S (failure to provide specimen of blood or urine), the court may deal with the offence as if it is a first offence. 

There is a mandatory disqualification from driving upon conviction for this offence.  On first conviction, the disqualification period is not less than 2 years.  On subsequent conviction, the disqualification period is not less than 5 years. The court may order a shorter period of disqualification if there are special reasons. Special reasons must be special to the facts constituting the particular case, amounting to mitigating or extenuating circumstances not providing a defence to the charge but directly connected with the commission of the offence that the court should properly take into consideration when imposing punishment.  Circumstances peculiar to the offender is not a special reason. 

Usually, the court will order that the offender complete a driving improvement course at his own cost before he can drive again. 

c. Driving motor vehicle without proper control under the influence of drug other than specific illicit drug (s.39L of the Road Traffic Ordinance (Cap. 374))

It is an offence to drive, attempt to drive, or in charge of a motor vehicle on any road while under the influence of a drug other than illicit drug specified in Schedule 1A of the Road Traffic Ordinance to such an extent as to be incapable of having proper control of the motor vehicle.  Those specified illicit drugs are heroin, ketamine, methamphetamine, cannabis, cocaine, and ecstasy (MDMA).  

If the circumstances at the material time were such that there was no likelihood of the accused driving the motor vehicle so long as he remained under the influence of the non-specified drug to such an extent as to be incapable of having proper control of the motor vehicle, he is taken not to have been in charge of a motor vehicle.   For example, a person is asleep in the motor vehicle but the ignition key was in the safe-keeping of someone else, or the circumstances was that it was clear that the accused would not be driving.  This defence usually applies to the “being in charge of a motor vehicle” limb of the offence. 

A person is considered to be under the influence of a non-specified drug to such an extent as to be incapable of having proper control of the motor vehicle if his ability to drive properly is for the time being impaired and the concentration of the non-specified drug present in his blood or urine would usually result in a person being unable to drive properly.  This is usually proved by the accused’s manner of driving, his physical condition, the report of any a doctor having conducted an examination on the accused, or by the written opinion of an authorised police officer having carried out an Impairment Test on the accused. 

It is a defence to this offence if the accused can prove that the non-specified drug present in his blood or urine was: 

1. prescribed for, administered, or supplied to him by a medical practitioner, registered dentist, registered Chinese medicine practitioner, registered pharmacist, or someone acting under their direction or supervision;  
2. a pharmaceutical product that is registered under the Pharmacy and Poisons Regulations (Cap. 138A) that did not require a prescription for its sale; or  
3. a proprietary Chinese medicine as defined and registered under the Chinese Medicine Ordinance (Cap. 549); 

and he did not know, and could not reasonably have known, that the lawfully obtained non-specified drug would render him incapable of having proper control of a motor vehicle if taken in accordance with advice, and that he had consumed the non-specified drug in accordance with the advice.  

Sentencing 

The maximum penalty is a fine of $25,000 and imprisonment for 3 years if tried on an indictment.  On a summary conviction, the maximum sentence is a fine of $10,000 and imprisonment for 6 months on first offence, and a fine of $25,000 and imprisonment for 12 months on subsequent offences. 

If 5 years have passed since the last conviction for the same offence, or an offence under section 39J, 39K, 39O(1) (failure to undergo preliminary drug test), or 39S (failure to provide specimen of blood or urine), the court may deal with the offence as if it is a first offence. 

There is a mandatory disqualification from driving upon conviction for this offence.  On first conviction, the disqualification period is not less than 6 months.  On subsequent conviction, the disqualification period is not less than 2 years.  

The court may order a shorter period of disqualification if there are special reasons. Special reasons must be special to the facts constituting the particular case, amounting to mitigating or extenuating circumstances not providing a defence to the charge but directly connected with the commission of the offence that the court should properly take into consideration when imposing punishment.  Circumstances peculiar to the offender is not a special reason. 

Usually the court will order that the offender complete a driving improvement course at his own cost before he can drive again. 

d. Comparison table of offences under sections 39J, 39K and 39L of the Road Traffic Ordinance (Cap. 374) 

1. Can a driver refuse to be examined or take the blood/urine test? 

No, the law states that he must comply when asked to do so, except for limited circumstances.  

The most accurate way to prove a driver is under the influence of drugs or has any concentration of specified illicit drugs in their system is through the laboratory analysis of blood or urine samples, established under section 39R of the Road Traffic Ordinance. But section 39M(9) provides that evidence whether an accused person’s ability to drive properly was impaired by the consumption or use of drugs may be given by the opinion of the police officer carrying out the Impairment Test. 

However, the requirement for a driver to provide these laboratory specimens is not immediate; it is typically triggered by the results of preliminary drug tests, which are made up of two types:  

1. Rapid Oral Fluid Test; or  
2. Impairment Test.  

Drivers cannot simply refuse to take any of these tests.  Under section 39O, failing to undergo these tests without a "reasonable excuse" is a criminal offence.  

While a driver may be exempt from a preliminary test due to medical reasons or other reasonable causes, this does not allow them to evade further examination.  

Instead, section 39P(3) empowers a police officer to exercise their objective judgment; if the officer has reasonable cause to suspect the presence of a specified illicit drug or drug influence, they can skip the preliminary stage and require the driver to provide a blood or urine specimen directly. 

At the laboratory specimen stage, the law mandates specific protocols that limit a driver’s ability to refuse. 

1. Regarding urine samples, a female driver may require the presence of a female officer for the collection.  
2. For blood samples, while section 39P(9) states that a specimen must not be taken without the person’s consent , and section 39P(5) allows a doctor to prevent a blood draw due to medical conditions (in which case only urine is taken), these are procedural safeguards rather than a general right to stop the investigation. 

Any failure to provide a required specimen without reasonable excuse may lead to a charge under section 39S, which can attract a maximum penalty of a fine of $25,000 and imprisonment for 3 years if tried on an indictment.  On a summary conviction, the maximum sentence is a fine of $10,000 and imprisonment for 6 months for a first offence, and a fine of $25,000 and imprisonment for 12 months for subsequent offences. 

Ultimately, it is highly unlikely that a driver can refuse these tests or a request to provide specimens without facing severe penalties. 

2. I was stopped by the police the day after using cannabis. The effects had worn off and my ability to drive was no longer influenced, yet the drug test still indicated its presence. Would this be classified as driving under the influence of drugs? 

Yes, under section 39K(1) of the Road Traffic Ordinance, driving with any concentration of cannabis (a specified illicit drug) in blood or urine constitutes an offence, even if the effects had worn off the next day and driving ability was unimpaired. Mere presence detected by a lab test triggers guilt unless one can meet the very limited statutory defences provided for under the Ordinance, with no defence based on lack of impairment, timing, or metabolism.  

IV. Offences related to Part 1 poisons

A. What are Part 1 poisons?

Schedule 10 to the Pharmacy and Poisons Regulations (Cap. 138A) contains the Poisons List which sets out a list of poisons subject to regulation for their sale and possession.  Poisons set out in the Poison List can only be sold on premises registered as authorised seller of poisons under the Pharmacy and Poisons Ordinance (Cap.138).  Further, poisons listed under Part 1 of the Poisons List can only be sold by a registered pharmacist or in his presence and under his supervision. 

The actual content of the Poisons List is prescribed by subsidiary legislation made by the Pharmacy and Poisons Board, after considering the advice of the Poisons Committee. Many prescription medicines are included in the poisons list.  Some of the more commonly encountered prescription medicine which are Part 1 poison are sildenafil (e.g. trade name Viagra), tadalafil (e.g. trade name Cialis), levofloxacin (an antibiotic) and morphine.  Nicotine (except in circumstances related to Nicotine Replacement Therapy (NRT)) is also a Part 1 poison. 

As most e-cigarettes and heated tobacco products containing nicotine do not meet the NRT exemption criteria, they are also Part 1 poisons. 

Furthermore, recently, pursuant to the Pharmacy and Poisons (Amendment) Regulation 2024, medicines containing less than 0.2% codeine (e.g., cough syrup) have been added to the list since 26 January 2024. 

1. The “drugs” my peers gave me are not typical drugs prohibited by the Dangerous Drugs Ordinance. Does this mean that they are legal? 

Even if the “drugs” are not prohibited by the Dangerous Drugs Ordinance, it may still be illegal to possess them if they fall within the Poisons List in Schedule 10 to the Pharmacy and Poisons Regulations (Cap. 138A). 

B. Unlawful possession of Part 1 poisons 

The meaning of "possession" is consistent with its definition in the Dangerous Drugs Ordinance. 

Section 23 and 33 of the Pharmacy and Poisons Ordinance (Cap. 138) prohibit the possession of Part 1 poison and make it an offence to possess Part 1 poison unless the accused proves that: 

1. It is a medicine supplied to him by a registered medical practitioner for medical treatment, a registered dentist for dental treatment, a registered veterinary surgeon for animal treatment (section 28(1)(a)); 
2. It is a medicine supplied to him by a person who is not a registered medical practitioner but practises medicine in a clinic under section 8(8) of the Medical Clinics Ordinance (Cap. 343) for the purposes of medical treatment and in the course of that person’s practice at the clinic (section 28(1)(b)); 
3. It is a medicine dispensed to him by an authorised seller of poisons in premises duly registered under the Ordinance (section 28(1)(c)); 
4. It formed part of the ingredients of a medicine supplied by an authorised seller of poisons in premises duly registered under the Ordinance (section 28(1)(d)). 

The medicine which contains the poison must be distinctly labelled with the name and address of the person who supplied or dispensed it. 

The maximum penalty for unlawful possession of Part 1 poisons is a fine of $100,000 and imprisonment for 2 years. 

1. How is the sentencing determined for new drugs not classified as dangerous drugs under the Dangerous Drugs Ordinance (Cap. 134) but a Part 1 poison? 

To arrive at the appropriate sentence for new drugs not classified as dangerous drugs but are a Part 1 poison, the prosecution often provides to the court expert reports and evidence setting out the nature, harmful effects, and prevalence of the new drug and invite the court to consider the sentencing guideline for similar poison if any.  Other circumstantial factors such as quantity, range of different poisons in possession, and latent risks, etc. will also be taken into the consideration by the court. 

C. Unlawful sale of Part 1 poisons

Under section 11 and Part 6 of the Pharmacy and Poisons Ordinance (Cap.138), only registered pharmacists, or premises that are registered with the Pharmacy and Poisons Board as seller of poisons under the Ordinance and the actual sale is conducted by a registered pharmacist or under his supervision may sell poisons.  Such premises must be under the personal control of the registered pharmacist. Any contravention of the above requirements constitutes an offence under sections 21 and 33 of the Ordinance. 

“Sale” means an offer for sale/gratuitous supply, or exposure for sale/gratuitous supply. 

Under section 22 of the Ordinance, an authorised seller of poisons may only sell Part 1 poisons to a fit and proper person who is either duly certified by an authorized person under the regulations or is known to the seller or to a registered pharmacist employed by the seller at the premises where the sale takes place.  The seller must maintain a poisons book recording the date of sale, the name, HKID number andaddress of the purchaser, the name of the person certifying that the purchaser is fit and proper, the name and quantity of the article sold, and the purpose stated by the purchaser to require the poison.  The purchaser and the registered pharmacist must also sign the poisons book. 

If poisons were found in the retail business premises not an authorised seller of poison, every person in that premises is presumed to possess the poison for the purposes of sale unless he proves otherwise (section 24). 

However, sections 21 and 22 do not apply to the sale of poisons by way of wholesale dealing; sales for export; sales to registered professionals (doctors, dentists, veterinary surgeons); or sales to government departments, educational institutions, or persons who require the substance for the purposes of their trade or business. 

Sentencing 

The maximum penalty for unlawful sale of Part 1 poison by an unregistered seller is a fine of $100,000 and imprisonment for 2 years. 

The usual sentence for unlawful sale of a Part 1 poison is immediate imprisonment. While the quantity of poison involved is not the primary consideration, it remains a factor to be taken into account. 

A breach of section 22 by an authorized seller of poisons, including the sale of poisons to persons who do not meet the requirements or the failure to maintain proper records, constitutes a criminal offence punishable by a maximum fine of $5,000. 

Given the seriousness of the offence, the sale of Part 1 poisons is likely to attract immediate custodial sentence; the courts have indicated that community service orders are not appropriate in such cases. 

The prosecution may rely on various evidence to prove that the defendant possessed or sold a Part 1 poison. The most common evidence includes the defendant’s own confession or evidence obtained through so-called “decoy” (or “sting”) operations. 

Upon conviction, the court may order that the convicted person to pay the costs and expenses reasonably incurred in relation to the collection, analysis or examination of poisons, pharmaceutical products, or any other substances for the purposes of the criminal proceedings (section 34A of the Pharmacy and Poisons Ordinance).  

V. Offences related to alternative smoking products

A. Smoking and Smoking Act 

Under Smoking (Public Health) Ordinance (Cap. 371), “smoking” is defined as inhaling and expelling: i) the smoke of tobacco generated from conventional smoking product, or ii) the aerosol generated by or from an alternative smoking product. 

“Conventional smoking products” include cigarettes, cigarette tobacco, cigar, or pipe tobacco. 

In relation to conventional smoking products, a “smoking act” means smoking or carrying a lighted cigarette, cigar, or pipe. 

In relation to alternative smoking products, a “smoking act” means an alternative smoking product that has activated any process, such as combustion or heating, for generating an aerosol by or from the alternative smoking product. 

Further, an “aerosol” is defined under the Ordinance as any gas, solid particles or liquid suspended in air, or any mixture of gas, solid particles or liquid suspended in air. 

B. Smoking in Public Places

Smoking is prohibited in most public places under sections 3, 4, 4A and 4B of the Smoking (Public Health) Ordinance (Cap. 371). It is an offence to smoke or do a smoking act in the following statutory no smoking areas: 

• Public transport carriers, e.g. public bus, public light bus, taxis, MTR trains, light rail vehicles, tramway cars, peak tramway cars, ferry vessels. 

• Indoor areas of: shops, department stores, shopping malls, markets, supermarkets, banks, restaurant premises, bars, karaoke establishments, mahjong-tin kau premises, bathhouses, massage establishments, workplaces, residential care homes, treatment centres, communal quarters, indoor public places such as toilet of offices, staircase of industrial or commercial buildings, lift lobby of residential buildings. 

• Indoor and outdoor areas of public lifts, escalators, hospitals, schools, child care centres, specified educational establishments (universities, post-secondary colleges, technical institutes, industrial training centres or skill centres, the Hong Kong Academy for Performing Arts), public pleasure grounds managed by the Leisure and Cultural Services Department, such as any park, playground, garden, sitting out area, promenade or sport ground, not including those areas designated as smoking areas, cinemas, theatres, concert halls, amusement centres, public swimming pools and the vicinities including sidewalks immediately adjacent to the swimming pools, diving boards, and spectator stands, stadia including pitches, running tracks and sidewalks immediately adjacent to them, and spectator’s stands, bathing beaches and the vicinities including adjacent barbeque areas, and Hong Kong Wetland Park. 

• Public places that lie within 3 meters outside the entrances/exits exclusively used for residential care homes, child care centres, schools, hospitals, and specified clinics or health centres managed or controlled by the HKSAR Government, the Hospital Authority, the Prince Philip Dental Hospital, or those specified by the Director of Health. 

Smoking or doing a smoking act is also prohibited while queuing in a line of two or more persons to board a public transport carrier at a designated boarding location, or while staying in the delineated area for a designated boarding location such as areas underneath bus shelters, inside areas where queuing positions are clearly indicated at ground level, or areas with queue railings) irrespective of whether the person is waiting to board a public transport carrier and whether there is another person in the area. 

In addition to queuing for public transport, it is also an offence to smoke or do a smoking act while queuing in a line of two or more persons to enter a cinema, theatre, concert hall, civic centre, community hall, community centre, activity centre, hospital, museum, public pleasure ground, public swimming pool, specified clinic or health centre, or stadium. 

Enforcement  

The driver, conductor, ticket inspector, ticket collector, or manager of any public transport carrier may enforce tobacco control measures by requesting the offender to cease to act, request the offender to leave the no smoking area or provide his name, address, and proof of identity if the offender is not co-operative, or call for police assistance if necessary.  Anyone who is requested to leave the no smoking area or removed from the no smoking area is not entitled to a refund of any admission fees or money for entering the premises or building. 

Penalty 

Under the Fixed Penalty (Smoking Offences) Ordinance (Cap. 600), anyone who smokes or does a smoking act in statutory no smoking areas or on public transport carriers will be liable for a fixed penalty of a $3,000 fine. 

Apart from Tobacco and Alcohol Control Inspectors and the Police, officers of Leisure and Cultural Services Department, the Food and Environmental Hygiene Department, and the Housing Department are also empowered to issue fixed penalty notices in public venues under their management. 

C. Import, promote, manufacture, sell, or possess for commercial purposes alternative smoking products

What are Alternative Smoking Products (ASPs) 

Alternative smoking products are defined and listed in Part 2, Schedule 7 of the Smoking (Public Health) Ordinance (Cap. 371) under 3 categories. 

• Category 1: a device (other than a waterpipe) used to imitate conventional smoking by generating aerosol from a non-tobacco/non-dangerous drug substance without direct ignition, including any of its designed components or accessories, and any compatible non-tobacco/non-dangerous drug substance packaged for use with it. 

• Category 2: a device (other than a waterpipe) used for smoking by generating aerosol from tobacco without direct ignition, including any of its designed components or accessories, and any tobacco packaged for use with it. 

• Category 3: specified plant material rolled up in any material, in the form that is capable of immediate use for imitating conventional smoking. 

These ASPs include smoking products such as vapes/ e-cigarettes, heat-not-burn tobacco and herbal cigarettes. 

Offences 

Under section 15DA of the Smoking (Public Health) Ordinance, no person may manufacture, sell or offer for sale, give to any person under 18 years of age, give to another person for the purposes of promotion, possess for commercial purposes, possess in a public place, alternative smoking products, including electronic smoking products, heated tobacco products and herbal cigarettes. 

It is also an offence under the Import and Export Ordinance (Cap. 60) to import alternative smoking products by way of parcels, cargoes, or bringing into Hong Kong by incoming travellers. 

Prohibition of the promotion or advertisement of alternative smoking products covers giving them away as gifts, prizes, or free samples especially to anyone under 18. In addition, distributing items meant for public display if they carry the name, brand, logo, or other clear marks of these products is also prohibited. 

Possession of alternative smoking products under the following circumstances are unlawful: for commercial purposes even in private, for example in a non-public, private storage, or in any public place smoking or carrying an activated smoking product in statutory non smoking areas, carrying any substance suitable for use with an alternative smoking product such as heat sticks, e-liquid capsules, or herbal cigarettes in a public place 

Use of alternative smoking products under the following circumstances are unlawful: smoking or carrying an activated alternative smoking product in statutory no smoking area, or in any public place. 

Alternative smoking products containing nicotine are classified as Part 1 poisons and possession of such can be prosecuted under illegal possession of Part 1 poison (sections 23 and 33 of the Pharmacy and Poisons Ordinance (Cap. 138)). 

Penalty 

Importing alternative smoking products carries a maximum penalty of $500,000 fine and imprisonment for 2 years on summary conviction, and a maximum penalty of $2,000,000 and imprisonment for 7 years on indictment. 

Manufacture, sale, possession for commercial purposes, or giving to another person for promotion, or giving to any person under the age of 18 carries a maximum penalty of $50,000 fine and imprisonment for 6 months. 

Possession of alternative smoking products in a public place can be punished by a fixed penalty of $3,000 if involving small quantities (i.e. no more than 5 units of capsules/5mL of substance or 100 units of heat sticks or 100 rolls of herbal cigarettes) for non-commercial purposes.  Possession of larger quantities is an aggravating factor and will be handled through prosecution rather than fixed penalty.  The maximum penalty on summary conviction is a fine of $50,000 and imprisonment for 6 months. 

Possession of alternative smoking products containing nicotine can be prosecuted for possession of Part 1 poison.  The maximum penalty for possession of Part 1 poison on summary conviction is a fine of $100,000 and imprisonment for 2 years. 

VI. Law enforcement and punishment of offences

A. Seizure of money, property or things (section 56 of the Dangerous Drugs Ordinance) 

Under section 56 of the Dangerous Drugs Ordinance (Cap. 134), the court may order the forfeiture of any money or thing (other than premises, a ship exceeding 250 gross tons, an aircraft, or a train) used in commission of, or in connection with an offence under the Ordinance, or a drug trafficking offence under the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405).  Any money or property received or possessed by any person as a result of these offences may also be liable for forfeiture.  Such order for forfeiture may be made whether or not any person has been convicted of such offences.  

On the other hand, section 3 of the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405) concerns the confiscation of benefits derived from drug trafficking. It empowers the court to order a person who has been convicted and sentenced for a drug trafficking offence as defined under that Ordinance, and on the application of the Secretary for Justice, to pay any benefit, such as payment or reward, derived from the drug trafficking enterprise under a Confiscation Order. 

For example, if a person uses a car to transport dangerous drugs, the court may order the car to be forfeited under section 56 of the Dangerous Drugs Ordinance, because it was used in connection with the commission of a drug offence. If $100,000 in cash is found and shown to be used as payment for the shipment of dangerous drugs, the court may also order that cash to be forfeited. This order under section 56 of the Dangerous Drugs Ordinance focuses on specific property connected with the offence, and may be made whether or not any person is convicted. 

By contrast, if the person is convicted and sentenced for a drug trafficking offence, the Secretary for Justice may apply for a Confiscation Order under section 3 of the Drug Trafficking (Recovery of Proceeds) Ordinance. If the court finds that the person obtained a benefit of $1 million from drug trafficking, it may order him to pay that amount, even if the original money has already been spent or cannot be located. This order under section 3 of the Drug Trafficking (Recovery of Proceeds) Ordinance focuses not on a particular item of property, but on recovering the value of the benefit obtained by the convicted offender. 

B. Detention Order to Drug Addiction Treatment Centre (section 4 of the Drug Addiction Treatment Centre Ordinance)

When an offender has been convicted of criminal offences that are punishable with imprisonment (irrespective of whether the offences are drug-related), and the offender is suffering from addiction to dangerous drug, the court may make a Drug Addiction Treatment Centre Orders (“DATC Order”) detaining the offender in a DATC to receive treatment for his drug addiction.  Such an order may be made in lieu of imposing any other sentence.  However, if the offence is too serious, such as drug trafficking offences, the court may refuse to make such a DATC Order and sentence the offender to prison instead. Regular prisons also have facilities for treatment of drug addiction and such treatment forms part of the curriculum of all prison institutions. 

DATCs are under the responsibility of the Correctional Services Department and the objectives of this compulsory drug addiction treatment programme are the cure, rehabilitation, reformation of the offender, and his ultimate re-integration into the community.  Inmates receive both physical and psychological treatment for 2 to 12 months depending on the inmate’s health, progress, and the likelihood of him remaining free from addiction on release.   

In general, a patient requires between 5 and 6 months of rehabilitation in the DATC and a further year under supervision before he can safely re-integrated into society. 

Under section 4 of the Drug Addiction Treatment Centre Ordinance (Cap. 244), the court may make an order to the DATC if: 

1. A person is found guilty of a relevant offence and the court is satisfied that in the circumstances of the case and having regard to the offender’s character and previous conduct, it is in his interest and the public interest that he should undergo a period of cure and rehabilitation; 
2. A report from the Commissioner of Correctional Services advising the court that the offender is suitable for cure and rehabilitation, and that space is available at addiction treatment centre for the offender.  The court may remand the convicted offender in the custody of the Commissioner of Correctional Services for up to 3 weeks for the preparation of such report. 

Where a court makes an order to detain an offender in DATC, no conviction will be recorded against the offender unless in the opinion of the court, the circumstances of the offence warrant the recording of a conviction.  The recording of criminal record is commonly ordered if the offence was serious. Even if the offender has already spent a significant period in custody prior to sentencing, the court may still order detention in a DATC if it considers such detention appropriate. If an offender had previously been sent to the DATC and has persisted in his drug abuse, he may still be suitable for return to the centre. 

Male adult drug addicts are placed in the Hei Ling Chau Drug Addiction Treatment Centre, while female adult drug addicts are placed in Nei Kwu Correctional Institution.  Young male inmates are placed at the Lai Sun Correctional Institution, while young female inmates are placed at Lai King Correctional Institution. 

Board of review (regulations 6 and 7 of the Drug Addiction Treatment Centre Regulations) 

After an offender is detained in the DATC, his progress will be subject to review by a Board of Review consisting of the Deputy Commissioner of Correctional Services or Senior Superintendent as Chairman, the Superintendent of the DATC, and not less than 3 other officers of the Correctional Services Department or public officers appointed by the Commissioner of Correctional Services.   

The Board of Review meets once a month to review the progress of each inmate detained in the DATC and make recommendations relating to his release.  They may also make recommendation to transfer an inmate to prison if that inmate is alleged to exercise a bad influence on other inmates in the DATC.  The Board will also interview inmates during the second month after the date of his admission.  During the 4 months following the first interview, the Board will interview the inmate at least once in every 2 months, and at least once a month thereafter. 

Leave of absence (Drug Addiction Treatment Centre Regulations, regulation 13) 

The Commissioner of Correctional Services may grant an inmate leave to absence for a period not exceeding 72 hours at any one time.  Such leave of absence will require the inmate to reside at a specified address during the period of leave.  Failure to return to the DATC or reside at the specified address is regarded as a disciplinary offence. 

In addition, the Superintendent of the DATC may order that an inmate be subject to separate confinement for no longer than 28 days, forfeiture of privileges for no longer than 3 months, deprivation of earnings, and/or deduction from earnings of the cost of any Government property lost, wilfully damaged, or destroyed as punishment for committing a disciplinary offence (regulation 15). 

Supervision order (section 5(1) of the Drug Addiction Treatment Centre Ordinance) 

The Commissioner of Correctional Services may order that an inmate be subject to supervision by an organisation or person specified by him for up to 12 months upon release to prevent renewed addiction.  Such supervision may specify medical examinations and residence. 

The Commissioner of Correctional Services may vary or cancel a supervision order at any time. 

Consequences of failure to comply (section 5(3) of the Drug Addiction Treatment Centre Ordinance) 

Breach of supervision order made by the Commissioner of Correctional Services upon release from DATC may attract a maximum sentence of $5,000 fine and imprisonment for 12 months. 

Recall order (section 6(1) of the Drug Addiction Treatment Centre Ordinance) 

Where an offender fails to comply with any requirements in a supervision order, the Commissioner of Correctional Services may make a recall order requiring the offender to return to the DATC.  Once the recall order is made, the offender is liable to be arrested and detained in the DATC.  The maximum period of detention under a recall order is either 12 months from the date of the original DATC Order or 4 months from the recall order, whichever is later. If the offender is released from the DATC under that recall order, and the original supervision period of 12 months has not yet expired, the offender must continue to serve out the remaining time under supervision.