COURT: This case concerns four charges, namely two counts of trafficking in dangerous drugs, Charges 1 and 4, and one count of possession of dangerous drugs, Charge 3, against both D1 and D2, and one further count of taking conveyance without authority, Charge 2, against D1 alone.
For the 1st count of trafficking in dangerous drugs, it is alleged that D1 and D2 on 18 October 2021 unlawfully trafficked in 6.98 grammes of crystalline solid containing 6.75 grammes of methamphetamine hydrochloride, commonly known as “Ice’, in the car park on the UC Level, Hotel COZi Oasis (in short, “the Hotel”) at 443 Castle Peak Road, Kwai Chung, New Territories.
For Charge 2, the taking of conveyance without authority, it is alleged that D1 took a conveyance, namely a private car, for his own use without the consent of the owner or other lawful authority on the same day.
For charge 3, the possession of dangerous drug count, it is alleged that D1 and D2, on the same day, in the car park, had in their possession dangerous drugs, namely 0.02 grammes of a solid containing cocaine and 0.29 grammes of a solid containing 0.25 grammes of ketamine.
For charge 4, the other trafficking in dangerous drugs count, it is alleged that D1 and D2, on the same day, in Room 907 of the Hotel, unlawfully trafficked in dangerous drugs, namely 7.39 grammes of crystalline solid containing 6.86 grammes of “Ice”, 0.12 grammes of a solid containing 0.09 grammes of cocaine, and 38 millilitres of a liquid, which, upon drying, contained 0.14 grammes of a solid containing 0.10 grammes of “Ice”.
Both defendants pleaded guilty to their respective charges at the Magistrates’ Court in July this year and were committed to this court for sentence.
The facts giving rise to the offences are these. On 18 October 2021, at around 2 pm, D1 was seen acting suspiciously and was intercepted by the police for enquiry in the car park. He told the police upon enquiry that he resided in the room, Room 907.
He was escorted to the car, which was in the car park. The engine was running at the time and D2 was found sitting in the passenger seat whilst another person, a Mr Fang, was sitting at the back seat. The police asked them to alight from the vehicle for enquiry.
Upon search of the car, the police seized a pink handbag placed on the front passenger seat. There were found inside the pink handbag 17 plastic bags containing what was subsequently found to be 6.98 grammes of crystalline solid containing 6.75 grammes of “Ice”, the subject matter of Charge 1.
The police seized hotel room cards from D1 and D2. Upon enquiry, D2 told the police that she too was staying in Room 907 of the Hotel as well. On the other hand, Mr Fang, the other passenger on board the car, said he was staying in another room in the Hotel.
The following items were seized upon further search of the car: in the driver seat door pocket, one box containing an “Ice” bottle; in a compartment below the steering wheel, one resealable transparent plastic bag containing 0.02 grammes of a solid containing cocaine; in the storage space at the control panel, one white folded paper containing 0.29 grammes of a solid containing 0.25 grammes of ketamine. These further smaller quantities of drugs seized from the car formed the subject matter of Charge 3.
Apart from the drugs, the police also found an electronic scale and three empty resealable plastic bags in the glove compartment at the front passenger seat of the car.
Upon arrest and under caution at the scene, D1 admitted that the drugs seized were for his own consumption.
At around 5.45 pm on the same day, the police escorted the two accused to Room 907 of the Hotel for further investigation and gained entry into the room using the room card seized from D1.
Upon search, the police found the following items of drugs and paraphernalia:
• in a cabinet underneath the washing basin in the toilet, a pink box containing an electronic scale and an “Ice” bottle with 0.38 millilitre of a liquid, which, upon subsequent forensic analysis, was found to contain 0.14 grammes of a solid containing 0.1 grammes of “Ice”;
• a plastic drawer containing six plastic bags containing 0.66 grammes of a solid containing 0.61 grammes of “Ice” and one plastic bag of 0.08 grammes of a solid containing “Ice”;
• a polka dot bag containing eight plastic bags containing 2.47 grammes of a solid containing 2.22 grammes of “Ice” as well as one paper bag and six empty resealable plastic bags;
• another plastic box containing five plastic bags containing 1.54 grammes of a crystalline solid containing 1.49 grammes of “Ice”;
• a metal box containing three plastic bags containing 0.86 grammes of a crystalline solid containing 0.83 grammes of “Ice”.
The police further seized a blue metal box in a cabinet next to the bed inside the room. That metal box was found to contain seven plastic bags containing 1.78 grammes of a crystalline solid containing 1.71 grammes of “Ice” and five plastic bags containing 0.12 grammes of a solid containing 0.09 grammes of cocaine.
All of the abovementioned drugs found inside Room 907, namely 6.86 grammes of “Ice”, 0.09 grammes of cocaine, 0.1 grammes of “Ice” found upon drying of the liquid contained in the “Ice” bottle, all together form the subject matter of charge 4, the other trafficking count.
Under caution at the scene, D1 claimed that the items found inside the room were for his self-consumption. In mitigation, this assertion of self-consumption has been abandoned.
Turning to Charge 2, the taking conveyance without authority count. D1, upon further enquiry by the police, admitted
that he had taken the car from his friend and that he himself did not have any driving licence. He told the police under caution that he had taken the car key from his friend Ming Chai whilst the latter was asleep and used the car to drive his girlfriend around. D1 claimed that Ming Chai did not know that D1 had no driving licence. He admitted that he had driven the car to the scene where he was arrested.
Upon subsequent investigation, the car was found to be registered by a company and was leased to a Mr Chan through a car rental company 11 days before the present offences, namely 7 October 2021.
The CCTV in the Hotel captured the activities of both defendants on the same day. It shows that at about 1.45 pm, which is about 15 minutes before the police interception of D1, both defendants left Room 907 with D2 holding the pink handbag which was subsequently found in the car. At about 1.49 pm, both defendants arrived at the car park and boarded the car. D1 was seen leaving the car shortly after. At 1.58 pm, the male passenger, Mr Fang, showed up and boarded the car as well.
By their guilty pleas, the defendants now admit that they possessed the “Ice”, the subject of Charge 1 and Charge 4, for the purpose of unlawful trafficking. They also admit simple possession of the other dangerous drugs seized inside the car, the subject of Charge 3. For Charge 2 against D1 alone, he admits that he had taken conveyance of the private car without the consent of its owner or any lawful authority.
The Defendants’ background
D1
D1 was 33 years old at the time of the offences and is now 36 years old. He was born in Hong Kong and received education up to Secondary 5 level. He is single and he lived with his parents in a public housing unit before his arrest.
He used to work as a casual worker earning a monthly income of around HK$12,000. According to his counsel, he has been a drug addict of methamphetamine, “Ice”, since he was 18 years old, in 2006.
D1 has an appalling criminal record. He has a total of 15 items of convictions, 11 of which are dangerous drugs related. Notably, he was convicted of trafficking in dangerous drugs in 2019 for which he was sentenced to 2 years and 10 months imprisonment. His last conviction was for possession of dangerous drugs for which he was sentenced in May 2021 to 10 months’ imprisonment. It is accepted by his counsel that the present offences were committed by D1 soon after his release from prison for his last possession of dangerous drugs conviction.
D2’s background
D2 was 28 years old at the time of the offences and is now 32. She was born in Hong Kong and received education up to Form 2. She worked as a shopkeeper at Greenbaby before her arrest for the present offences.
D2 is a long-term patient of various illnesses, including type 2 diabetes, fatty liver, spondylosis and psoriasis. Her visions, I am told, have also been reduced to 30 per cent requiring regular treatment at hospital. I am told that these medical conditions contributed to her academic struggles, further exacerbated by bullying from her classmate, leading her to drop out of school after Form 2. These events triggered her depression symptoms at the age of 14.
D2 has been a drug user of methamphetamine since the age of 14. I am told she resorted to abuse in “Ice” to cope with her pain and depression. That is so in accordance with the medical report placed before the court, even during her pregnancy with her youngest daughter in 2020 and after her release from prison in June 2021.
As mentioned, the court has a medical report prepared by a Dr Joyce Heung of Kwai Chung Hospital. The report shows that, since 2008, D2 has been diagnosed of depression and has started seeking psychiatric clinical therapy. She was later admitted to Kwai Chung Hospital after her detention for breaching a probation order in 2015 and was diagnosed with mental and behavioural disorders due to her use of other stimulants, her dependence syndrome for “Ice” and borderline personality disorder. The report also reveals that she has a history of suicidal attempts after conflicts with her then boyfriend in 2017 and 2018.
Despite her medical conditions and her plight, D2, to her credit, is a filial daughter and elder sister. I am told that she has been, or had been, taking care of her mother and her younger brother before her arrest. Her younger brother, in particular, is a mentally challenged person who has been diagnosed with epilepsy and hyperactivity disorder, and who is residing in a residential care home.
As for her own personal circumstance, D2, I am told, is a divorced mother of three children, a daughter aged 15, a son aged 13, and a youngest daughter aged 4. Indeed, the elder daughter and the son are present in court today to show their support for their mother.
During D2’s remand, it was her grandmother who helped taking care of the children until her grandmother’s sudden passing away in May 2023. I am told that the children are currently under the care of the Social Welfare scheme because of D2’s incarceration.
As for her criminal record, D2 has eight previous convictions involving nine offences, all of which were dangerous drugs or Part 1 poison related. There is no previous conviction for trafficking. Her last conviction for possession of dangerous drugs and equipment for smoking dangerous drugs were in May 2021, for which offences she was sentenced to a total of 12 months imprisonment.
Again, the offences, the subject of the present case, were committed soon after her release from prison for the last convictions for possession of dangerous drugs and related equipment.
I am told that during her remand, D2 managed to quit her drug addiction. She suffered from insomnia and other mood problem during her remand because of the loss of several of her loved ones. Her grandmother, her parents and her uncle passed away in February and July this year. And she came to realise that upon her release in the future, she would be the only one who is there to raise her children and care for her younger brother. It is against this background that it is said that she is determined to rehabilitate and turn over a new leaf.
Indeed, it is shown to me that she has endeavoured to equip herself for her future endeavours by attending different courses, including English courses offered by the School of Continuing and Professional Studies by a university whilst on remand.
Mitigation
Both counsel for D1 and D2 urged me to adopt a combined approach for sentencing the two trafficking counts, Charge 1 and Charge 4, as the two trafficking offences were closely related in the sense that they occurred on the same day, at the same location, namely in the Hotel or thereabout.
It is further urged upon me to consider totality and order the sentences on the possession count, Charge 3, to run concurrently with the two trafficking counts for the reason that the drugs in the defendants’ possession seized in the car were part and parcel of the same transaction for trafficking.
As far as D1 is concerned, in mitigation, on the charge of taking conveyance without authority, Charge 2, Mr Wong, on behalf of D1, invites the court to consider a lower starting point, highlighting that this is D1’s first conviction for this offence. It is submitted that the circumstances of the present offence can be distinguished from that in HKSAR v Andrianiaina [2017] 2 HKLRD 500 for there being no traffic accident, no property damage or personal injuries caused by D1 in the course of his offending. He invites me to take into account that there was no suggestion that D1’s driving behaviour fell below that of a reasonably competent driver.
As regards the other offences, I have before me a mitigation letter written by D1 himself along with some certificates evidencing his completion of various Christian courses in prison. It is said that D1, is remorseful for his misdeed and is willing to take up responsibilities for his wrongdoings. It is said that through the religious activities he participated in prison, he has now gained a deeper reflection on life and is committed to reform and not to reoffend in future.
In relation to D2, Ms Lau, on behalf of D2, asked me to show her leniency, taking into account D2’s background, including her relatively young age, her personal and family circumstances, the quantity of drugs involved and her early guilty plea.
It is submitted that D2 committed the present offences due to her financial straits exacerbated by the pandemic, tempted by a desire to make more money to support her family, including her children and her late grandmother, who had at the time been suffering from renal failure and anaemia, she succumbed to negative peer influence and engaged in drug related activities. I am told that D2 experienced a relapse and resumed drug abuse due to her vulnerability, even resorting to harming herself in 2020.
For her previous convictions, the Court is urged not to consider any aggravation in sentence in respect of the trafficking count for the reason that none of her previous convictions was for trafficking and that it is now her first conviction for such offence. It is, however, accepted that for the possession count the court is required to consider the element of aggravation given her previous records for possession.
There is placed before me a mitigating letter written by Father Wotherspoon with documents in support attached. Father Wotherspoon confirmed that D2 had joined his anti-narcotics campaign, that she had helped the campaign by writing letters to help warn others against drug abuse, which the campaign would be using. On behalf of D2, Ms Lau asked me to allow a discretionary reduction for sentence for D2’s participation in Father Wotherspoon’s campaign, as did Mr Justice Andrew Chan in the case of HKSAR v Liu Yan Yan, HCCC 303/2023. It is said that D2 is determined to continue engaging in the campaign and show her efforts to help warn others against drug abuse.
Ms Lau also prayed in aid D2’s unfortunate personal background, which was said to be attributed to her commission of the present offences. Whilst this court is sympathetic on D2 given her plight and her family circumstances, it has been established that personal circumstances rarely afford a sentencing discount when faced with a conviction as serious as the present case.
Sentence
Charge 1 and Charge 4: Trafficking in dangerous drugs
I shall deal first with Charges 1 and 4, the two trafficking counts. Trafficking in dangerous drugs, it is always a serious offence and it is made more serious when more than one type of drugs are involved.
The six-step approach in relation to sentencing drug trafficking offences has been set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, as complemented by HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186. For Charge 1, the drug involved is “Ice” and the quantity is 6.75 grammes. For Charge 4, the two types of drugs involved are a total of 6.87 grammes of “Ice” and 0.09 grammes of cocaine.
I accept that both offences were committed on the same day and were closely linked. It is thus sensible for me to adopt a global approach, that is to add up the drugs on both charges and arrive at an appropriate overall starting point for sentence (see HKSAR v Wong To, CACC 508/2000). In that process, the court also adheres to the principle of totality.
On a global approach, the total quantity of “Ice” involved in Charges 1 and 4 is 13.71 grammes and that of cocaine is 0.09 grammes. The applicable sentencing tariffs for “Ice” are set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. A quantity of between 10 and 70 grammes of “Ice” would attract a starting point of between 7 and 11 years’ imprisonment.
According to the sentencing tariffs in R v Lau Tak Ming & ors [1990] 2 HKLR 370 read in conjunction with Attorney General v Pedro Nel Rojas [1994] 1 HKC 342, for a quantity of up to 10 grammes of cocaine, a starting point of between 2 and 5 years’ imprisonment is warranted.
Using the applicable sentencing bands as the benchmark, I will adopt an initial starting point of 7 years and 3 months for the total quantity of “Ice” and a notional starting point of 2 years for the quantity of cocaine for the purpose of trafficking.
As this case involves more than one type of dangerous drugs, it is appropriate to adopt the combined approach for the purpose of sentencing Charges 1 and 4, crosschecked with the three tests, namely the absurdity test, the conversion test, and the ratio test, in accordance with the approach set down in HKSAR v Chan Yuk Leong, CACC 318/2013.
“Applying the absurdity test, the starting point would be 7 years and 3 months.” “Applying the conversion test, if one were to convert all the drugs into “Ice”, the starting point would be 7 years and 3 months. The same starting point would be derived if one were to convert all the drugs into cocaine.” “Applying the ratio test, the starting point produced would also be 7 years and 3 months.”
Accordingly, in the circumstances of this case, I take the view that a starting point of 7 years and 3 months, cross-checked against the result of the three tests that I have just mentioned, would produce a just outcome.
As regards the defendants’ role and culpability, I am prepared to accept that there is nothing on the evidence to suggest that their roles were more than a mere courier. As such, I do not consider it necessary to enhance the sentence on account of their role and culpability.
However, D1 is a repeat offender in drug trafficking. His previous conviction for drug trafficking was in 2019. It is established that the presence of a relevant previous conviction for drug trafficking would constitute grounds for enhancement when sentencing for a subsequent similar offence (see HKSAR v Chau Hon Kwong [2011] 1 HKLRD 630 at paragraph 31 to 33). I will therefore enhance his sentence for 2 months for this aggravating feature. On the other hand, I accept that this is the first conviction for trafficking in dangerous drugs for D2. Although she has quite a number of previous convictions for drug related offences, none of them was for trafficking. For that reason, I will not enhance her sentence in respect of the trafficking counts, Charges 1 and 4.
Turning to another potentially aggravating feature that exists in this case, the presence of more than one type of drugs. As a matter of principle, where more than one type of narcotics is intended to be sold together or consumed in combination by drug abusers, which could in turn lead to a
far more dangerous and potent concoction, the availability of more than one type of drug is aggravating in that it would have enabled the offender to reach a wider market, thus warranting an enhancement of sentence (see Chan Yuk Leong at paragraphs 23 to 25, HKSAR v Wong Wang Hing [2023] HKCA 729 at paragraphs 10 and 11, and HKSAR v Husain Saddam [2018] HKCA 55 at paragraph 22).
That said, noting the small quantity of cocaine, namely 0.09 grammes, involved in the present case as compared to the quantity of “Ice”, namely 13.71 grammes, I take the view that the risk of the combination of drugs being capable of reaching a wider market is not that high as to require an enhancement of the sentence for that reason.
As for D2’s contribution to Father Wotherspoon’s campaign, I am mindful that there was indeed facility for D2, even as a local Hong Kong citizen, to assist in Father Wotherspoon’s campaign in the present case. In Kilima Abubakar Abbas, reported [2018] 6 HKC 35, whilst the Court of Appeal expressed that the post-sentence participation in Father Wotherspoon’s campaign is a matter best left to the Executive, it stated that a sentencing judge has a discretion to allow a token discount of no more than 3 months for it may still be in the public interest to encourage a prisoner’s efforts in this regard. I see no distinction between a non-local defendant and a local defendant seeking reliance on such mitigating feature as a measure to encourage prisoners’ effort in campaigns such as that by Father Wotherspoon.
Hence, I take the view that it is appropriate for me to exercise my discretion to allow a token discount of 3 months for the active participation and continued contribution by D2 to Father Wotherspoon’s campaign. Indeed, such was what another first instance judge, Mr Justice Andrew Chan, had done in the other case that I mentioned.
Apart from this, there are no other mitigating factors of which to justify any further sentence reduction save for the guilty pleas for which both defendants would be entitled to the full one-third discount.
Charge 3: Possession of dangerous drugs
Unlike the trafficking counts, there are no tariffs for possession of dangerous drugs. When sentencing bona fide drug users for simple possession of drugs, two factors are of particular importance: the quantity of dangerous drugs involved and the risk that the dangerous drugs will get into the hands of others by access or distribution, ie latent risk (see HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405 and HKSAR v Wong Wai Wah, CACC 181/2017).
Although no sentencing guidelines have been laid down by the Court of Appeal for possession of ketamine, I have reminded myself of the judgement in SJ v Ng Wing Yi, CAAR 4/2013, in which the Court of Appeal observed that sentencing guidelines for trafficking in ketamine, as set out in SJ v Hii Siew Cheng [2009] 1 HKLRD 1,
“do not in themselves dictate a mathematical calibration downwards for possession simpliciter but they illustrate the seriousness with which the drug is now treated; a recognition, as the judgement says in terms, of the prevalence of the drug and its dangers to the consumer.”
The drugs involved here are 0.25 grammes of ketamine and 0.02 grammes of cocaine. Having, in particular, regard to both defendants’ previous criminal record, I am of the view that an imprisonment term is required. Noting, however, the minimal quantity of drugs involved, I shall adopt a starting point of 2 months’ imprisonment for each defendant for the charge of possession. I will not enhance the sentence on account of latent risk in light of the small quantity of drugs involved.
However, both defendants are repeat offenders for possession of dangerous drugs offence. Their last convictions for possession were just shortly before their commission of the present offences. As such, it would be an aggravating factor justifying an enhancement of their sentence in respect of the possession count. I would therefore enhance the starting point for the possession count by 1 month, arriving at a sentence of 3 months’ imprisonment.
There being no other mitigating factor apart from the early guilty plea, the resultant sentence after the full one-third discount for the possession of dangerous drug count, Charge 3, is 2 months’ imprisonment for each defendant.
Charge 2
Lastly, I shall turn to the taking conveyance without authority count, Charge 2.
Again, there are no guidelines for this offence for which immediate custodial sentences have been imposed on previous cases. This offence could be committed in a wide range of scenarios ranging from taking others’ car for a joyride at one end to taking others’ car with the participation of a serious crime at the other end as the court observed in The Queen v Tam, Simon HCMA 489 and 490/1996. In that case, the appellant pleaded guilty to a total of three counts of taking conveyance without authority as well as other offences. He was sentenced to a concurrent term of 6 months’ imprisonment for one count of taking conveyance without authority, in which the purpose of such taking of vehicle was for a joyride, as well as 12 months’ imprisonment for other two counts of taking conveyance in connection with the commission of theft offences. The appellate court there was satisfied that the sentence of 6 to 12 months imposed after plea was appropriate.
In The Queen v Leung Yam Hung [1987] HKCA 99, the applicant was sentenced to 12 months’ imprisonment for the same offence of taking conveyance without authority. The court there distinguished between joyriding and use of vehicle for commission of serious crime, suggesting that around 6 months’ imprisonment would have been appropriate for an isolated charge of this nature without the overlay of the taking of the car for the purpose of participation in a serious criminal offence.
In Andrianiaina [2017] 2 HKLRD 500, the Court of Appeal observed that the taking of the vehicle without authority was a single offence and that defendant was of previous good character, and upheld the starting point of 9 months’ imprisonment reduced from one of 12 months.
On the facts of the present case, D1 admitted to having taken the car and driven it to the scene, and that he intended to use the car to drive his girlfriend around. As captured by the CCTV, both D1 and D2 left Room 907 where the drugs for trafficking, the subject of Count 4, were seized, with D2 carrying the pink handbag with the quantity of “Ice”, the subject of Count 1, seized. Both of them were then seen boarding the car shortly after.
In view of the fact that drugs were being brought from the room to the car admittedly for trafficking purpose, I come to the view that D1 had the intention to be involved in trafficking in dangerous drugs at the time he had taken conveyance of the vehicle.
In these circumstances, I shall adopt 12 months as the starting point, reducing it to 8 months after the full one-third discount for his timely guilty plea.
Totality
I am mindful of the totality principle, and the sentences I impose for Charges 1 and 4, the two trafficking counts, ought to be ordered to run concurrently with the sentence imposed for Charge 3, the possession.
However, since charge 2, the taking conveyance without authority count, is a separate and distinct offence from the other counts, it is appropriate to order the sentence on Charge 2 to run consecutively to the sentence on the other three counts in respect of D1.
Hence, the final sentences I will impose on D1 are these:
For the two trafficking counts, Charges 1 and 4, I will adopt the starting point of 7 years and 3 months. After imposing the 2 months’ enhancement for his previous trafficking record, showing that he is a repeat offender, the sentence will be brought up to 7 years and 5 months. The overall sentence after one-third discount for his guilty plea would be around 59 months, which is 4 years and 11 months.
For Count 3, the possession of dangerous drug count, the sentence after discount for plea is 2 months. I would order this 2 months term on Count 3 to run concurrently with the overall sentence I impose for Count 1 and Count 4.
In respect of the taking conveyance without authority count, Charge 2, the sentence, as I said, is one of 8 months’ imprisonment. That would run consecutively to the 4 years and 11 months I impose for Charges 1, 3 and 4.
So for all four counts of offences D1 stand convicted, he is therefore sentenced to a total term of 5 years and 7 months’ imprisonment.
For D2, for the two trafficking counts, Charges 1 and 4, I will adopt the same starting point of 7 years and 3 months and further allow a token discount of 3 months for her contribution to Father Wotherspoon’s campaign, arriving at a sentence of 7 years.
Giving the full one-third discount for her guilty plea, the overall sentence she will receive is 4 years and 8 months, that is 56 months. I would order the 2 months’ imprisonment term I impose on Charge 3, the possession count, to run concurrently with the sentence, the overall sentence I impose on the two trafficking counts.
The sentence, the final sentence for D2 would therefore be 4 years and 8 months. Before I pronounce the final sentence, is there any issue with the calculation that I’ve just explained? No?
All right, so the 1st accused, you are therefore sentenced to an overall term of 5 years and 7 months’ imprisonment.
The 2nd accused, you are sentenced to an overall term of 4 years and 8 months’ imprisonment.