Ho Ming has supplied drugs to Siu Yuk and this is trafficking in dangerous drugs contrary to Section 4 of the Dangerous Drugs Ordinance (Chapter 134). It makes no difference that Siu Yuk did not know what was inside the package, Ho Ming has supplied Siu Yuk with drugs. Ho Ming could receive a prison sentence, the length of sentence depending upon the nature and amount of the drug supplied to Siu Yuk.
If Ho Ming is under 16 years of age the charge would still be trafficking. When sentencing the court could take account of Ho Ming’s age and consider, if he is over 14 years of age, making a Training Centre Order, a Detention Centre Order or a Rehabilitation Centre Order. The court would have to obtain reports as to Ho Ming’s suitability for those sentences. Ho Ming’s drug background would be a relevant consideration for a Detention Centre, a Training Centre or a Rehabilitation Centre Order. His drug background might well make him unsuitable for either of those orders, even if he is under 16 years of age.
Again depending upon Ho Ming’s suitability, a Drug Addiction Treatment Centre Order might be considered. An offender under the age of 16 can be sentenced to imprisonment if the offence and the nature of the offender mean that no other sentence is appropriate. For more details regarding different sentencing options for young offenders, please click here.
If Siu Yuk did not know the package contained dangerous drugs she would not commit any offence. Siu Yuk is being used by Ho Ming. She is an innocent agent.
If Siu Yuk knew the package contained dangerous drugs and gave them to Chee, Siu Yuk would have trafficked in dangerous drugs. As a fact there is the supply of drugs to Chee. That Siu Yuk gave the package to the wrong person does not alter the fact of supply of drugs to another person, which is trafficking.
If Siu Yuk was only 12 years old, the prosecution would have to rebut the presumption of “doli incapax” (incapable of evil). Though Siu Yuk is of the age of criminal responsibility (which is 10 years old and above), she is under the age of 14. Hence the prosecution would have to prove not only that Siu Yuk knew the package contained dangerous drugs but that supplying the drugs to Chee was seriously wrong as opposed to simply naughty.
Section 8 of the Dangerous Drugs Ordinance (Chapter 134) makes it an offence to possess, smoke, inhale, ingest or inject dangerous drugs. Chi Ho has consumed dangerous drugs. The requirements of Section 8 of the Dangerous Drugs Ordinance (Chapter 134) are satisfied.
No, the school cannot order Chi Ho to undergo a drug test unless he consents. Unless an Ordinance places a positive obligation upon a person suspected of a criminal offence to supply a sample for analysis or to undergo a test, there can be no compulsion to do so. This is an example of the common law principle that a person is not required to incriminate himself or herself.