COURT: The defendant is charged with one count of theft and one count of trafficking in dangerous drugs. Count 1 alleges that the defendant stole a Hong Kong identity card relating to a Mr Ng on 10 September 2022 at an address in Fuk Hang Tsuen Road, Tuen Mun, New Territories, in Hong Kong. That is the address of the defendant where the Hong Kong ID card was found.
Count 2 is the trafficking in dangerous drugs count in which it is alleged that the defendant unlawfully trafficked in 17.17 grammes of a crystalline solid containing 17.07 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’; 7.59 grammes of a solid containing 5.37 grammes of ketamine and 0.58 grammes of a solid containing 0.51 grammes of cocaine at the same flat.
The defendant pleaded guilty at the Magistrate Court and was committed to this court for sentencing.
Facts of the Case
On 10 September 2022, at about 11.02 pm, patrolling police officers saw the defendant and intercepted him. On inquiry, it was found that the defendant did not bring his identity card. The police then escorted the defendant to the address in question for the purpose of retrieving his identity card. When they reached the defendant’s home, the defendant handed two Hong Kong identity cards to the police: one belonging to himself and another one belonging to that Mr Ng, the subject person of the 1st count. The police thus arrested the defendant for possessing Mr Ng’s identity card.
On further inquiries, the police found out that Mr Ng had earlier on lost his Hong Kong identity card in July 2022 and came to know this when he was at a park in Tuen Mun. Mr Ng confirmed that he did not know the defendant and had never lent his ID card to anybody. The defendant admits that after he had found Mr Ng’s Hong Kong ID card, he dishonestly kept it with the intent to permanently depriving Mr Ng of the ID card. This forms the basis of Charge 1.
In respect of Charge 2, the facts are that the police continued to search the defendant’s premises and seized the following items. Inside the safe in the bedroom wardrobe, there were two containers containing plastic bags which in turn contained altogether 32 bags of drugs, including 21 plastic bags containing 16.81 grammes of crystalline solid containing 16.71 grammes of ‘Ice’; nine plastic bags containing 7.59 grammes of a solid containing 5.37 grammes of ketamine; two plastic bags containing 0.39 grammes of solid containing 0.36 grammes of cocaine.
On a bedside shelf in the bedroom, the police found another container containing two plastic bags containing 0.19 grammes of a solid containing 0.15 grammes of cocaine; and one plastic bag containing 0.36 grammes of a crystalline solid containing 0.36 grammes of ‘Ice’. These are the drugs, the subject matter of Count 2.
The police also seized HK$4,500 in cash from the defendant’s trousers pocket. Under caution at the scene, the defendant claimed that the dangerous drugs were for his self-consumption.
The estimated street value of the drugs seized by the police are as follows. For the ‘Ice’, the value is estimated at HK$10,948. For the ketamine, the value is estimated at HK$4,417. For the cocaine, it is HK$499.
In the subsequent video-recorded interview, the defendant admitted under caution that he had purchased the drugs for about $10,000 from a South Asian male in Pak Heung. The drugs came in individual bags when he purchased them from that man. He then brought the drugs home and divided the ‘Ice’ and ketamine into smaller bags. He claimed that he would consume about two to three small bags of ‘Ice’ and one to two small bags of ketamine a day.
The defendant admits now that he was in possession of the dangerous drugs seized at his flat for the purpose of unlawful trafficking. These are the facts forming Charge 2.
The Defendant’s Background
The defendant is 62 years old now, born in China. He received education up to primary level. His parents passed away in 2012, and he has a sister with whom he had maintained or he has maintained no contact. He lived separately from his wife for many years. He is, in fact, separated from his wife.
According to the defendant’s antecedent statement, it is claimed that he has been addicted to ‘Ice’ and ketamine for 10 years. At the time of the arrest and offence, the defendant, according to the antecedent statement, was unemployed. In that regard, it has been said in mitigation that the defendant worked as casual worker at the time of the offence, with an unstable income.
The defendant has a number of previous criminal convictions, one of which was for doing or offering to do an act preparatory to trafficking in dangerous drugs, for which he was convicted and sentenced to a term of 22 months’ imprisonment in 2018. He was last discharged from prison for that offence in April 2019.
In mitigation, Mr Yuen appearing for the defendant invites the court to consider the fact that there is no evidence showing that the defendant has used or intended to use the Hong Kong identity card for any illegal purpose. It is said that the defendant only took and stole the ID card out of curiosity.
In respect of the trafficking count, Mr Yuen submits in mitigation that there is no evidence to suggest that the defendant’s role was something more than a storekeeper or a courier, and that there is no evidence that the defendant was involved in any organised crime or triad activities. Nor does this case involve any international element that warrants an aggravation in sentence.
Lastly, Mr Yuen invites the court to give a small discount on the defendant’s sentence for the fact that, as he claimed, he is a drug addict with a long history of drug abuse and that some of the drugs seized were for his self-consumption.
Mr Yuen does accept that there is no evidence to support a claim that any significant quantities of the drugs were for the defendant’s self-consumption.
Sentence
In relation to Charge 1, the theft of the Hong Kong ID card, the prosecution has submitted a case for the court’s reference, HKSAR v Majid, Hussain, HCMA 695 of 2006, in which the defendant therein was sentenced on his guilty plea to 2 months for an offence of theft of an ID card.
In the video-recorded interview of this defendant, he admitted that he had picked up the Hong Kong ID card from a parking lot about a week before the present offence. He said he did not know the person to whom the ID card belonged and that he did not have any plan to use the Hong Kong ID card.
Given what the defendant claims in his video-recorded interview and, apparently, there is no evidence to suggest otherwise, I take the view that as compared to the sentence imposed in Majid, Hussain, I am entitled to adopt a slightly lighter sentence for Count 1, considering the fact that the defendant did not use the ID card for the purpose of concealing his identity or impersonating the owner of the ID card, which is a feature that can be distinguished from the appellant in Majid, Hussain.
Be that as it may, the defendant admitted that he stole the Hong Kong ID card with the intention of permanently depriving the owner of it. And that, undoubtedly, is an act of dishonesty and one that warrants a custodial sentence. I am inclined to adopt a starting point for sentence for this charge of 3 weeks’ imprisonment.
Sentence for Charge 2
The tariff for trafficking in ‘Ice’ is as set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For the quantity of ‘Ice’ involved, the band between 10 and 70 grammes of ‘Ice’ is applicable, which warrants a starting point of between 7 and 11 years’ imprisonment.
For cocaine, the applicable tariff for trafficking can be found in R v Lau Tak Ming [1990] 2 HKLR 370. For quantities of up to 10 grammes, the sentence band is 2 to 5 years.
For ketamine, the applicable tariff is set out in SJ v Hii Siew Cheng [2009] 1 HKLRD 1, and for quantities between 1 to 10 grammes, the sentence band applicable is 2 to 4 years.
As this case involved more than one type of dangerous drugs, the combined approach would be adopted for the purpose of sentencing and cross-checking with the three tests, namely, the absurdity test, the conversion test and the ratio test as illustrated in HKSAR v Chan Yuk Leong, CACC 318/2013.
Applying the absurdity test (see HKSAR v Yip Wai Yin [2004] 3 HKC 367), the result of absurdity test would be a starting point of around 7 years 10 months. That marks the upper threshold of the starting point to be adopted, using the combined approach.
The relevant principle of conversion test is as set out in HKSAR v Wong Kin Kau [2010] 4 HKC 443. Applying the conversion test, the appropriate starting point would be in the range of 7 years and 7 months.
For the ratio test, the applicable principle is stated in HKSAR v Yau Ka Ming, CACC 144/2013. Upon calculation using the ratio test, the appropriate starting point is 6 years and 10 months.
Having cross-checked with the three tests, I take the view that a starting point of 7 years and 7 months would be appropriate for the purpose of this case, which would produce a just outcome.
As this case involved trafficking in more than one type of drugs, this is an aggravating circumstance (see HKSAR v Yim Hung Lui Ricky [2012] HKCU 333). For this aggravating feature, I would enhance the starting point for the trafficking in dangerous drug charge by 2 months. This would bring the sentence to 7 years and 9 months.
The defence submits that the defendant is a drug addict for ‘Ice’ and ketamine and that, as he claimed in the video-recorded interview, he would consume about two to three small bags of ‘Ice’ and one to two small bags of ketamine a day. As mentioned, the defence is not suggesting that any significant quantity of the drugs seized were for the defendant’s self-consumption.
As emphasised in HKSAR v Kong Tat Lung [2017] 6 HKC 448, the discount for self-consumption is only applicable where a significant portion of the drugs seized was used for such purpose.
This is not the case here. But on the basis of what the defendant claimed in the video-recorded interview and as submitted by Mr Yuen in mitigation, I am prepared to accept that some of the drugs seized were for the defendant’s self-consumption. It is within the court’s sentencing discretion to give a small discount to reflect this element of self-consumption (see HKSAR v Liu Ming Sze [2017] 1 HKLRD 69). For this factor, I am prepared to allow 1-month discount for the defendant’s claimed self-consumption of some of the drugs seized.
The sentence I am prepared to impose for the two charges are as follows. For Charge 1, the theft of the ID card, a starting point is adopted for 3 weeks’ imprisonment. Discounting that for the plea of guilty, it would be reduced to 2 weeks.
For Charge 2, the trafficking in dangerous drug count, the initial starting point is 7 years 7 months. I would enhance it for 2 months, as indicated, for the fact that more than one type of drugs were involved, and I would add 1 more month for the fact that the defendant is a repeat offender in offence of similar nature. I would give a discount of 1 month for the fact that there is certain quantity of drugs seized which are for the purpose of the defendant’s self-consumption.
The final sentence for the trafficking in dangerous drug count is, hence, 7 years 9 months. Reducing the starting point of 7 years and 9 months for the defendant’s early plea, it would be reduced to a final sentence of 62 months. That is 5 years and 2 months.
Totality
The theft of the ID card offence is of a completely different nature than the offence of trafficking in dangerous drugs. It adds to the culpability of the offender, and on this basis, the court sees the justification of ordering the two sentences to be served consecutively. The result is the defendant is to serve a term of 5 years 2 months and 2 weeks. This is the sentence that I would impose on the defendant.