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DCCC 1113/2021
[2022] HKDC 821
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 1113 OF 2021
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| Before: |
Deputy District Judge K Lo |
| Present: |
Ms Flavia Fung, counsel on fiat, for HKSAR |
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Ms Cheng Wing Yee, Barbara, instructed by Edward Lau Phoebe Ng Solicitors LLP, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
[1] & [2] Trafficking in dangerous drugs (販運危險藥物) |
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[3] Possession of apparatuses fit and intended for the inhalation of a dangerous drug (管有適合於及擬用作吸服危險藥物的器具) |
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REASONS FOR SENTENCE
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1. The defendant pleaded guilty to 2 charges of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (1st and 2nd charge).
2. It is also ordered that the 3rd charge be left on court file and not to be proceeded with without leave of the court.
Facts
3. On 16 June 2021 at around 8:25 pm, the defendant and another person were seen walking furtively. Upon stop and search opposite Ngan Fung House, 2 plastic bags containing 12.6 grammes of a crystalline solid containing 12 grammes of methamphetamine hydrochloride were found in the defendant’s right trouser pocket. Under verbal caution, he claimed that the 2 bags of ICE were given to him by the person beside him and that they were for consumption rather than for sale.
4. A bag containing 2 tablets containing a total of 0.08 gramme of 3,4-methylenedioxymethamphetamine (MDMA) was found on the ground near the defendant. Under verbal caution, he claimed that the 2 tablets were given to him by the person beside him.
5. The defendant was brought back to his residence at Room 614, Suet Fung House, Fung Tak Estate, for a house search. Upon search, the following were found on a table in the living room:-
(a) 7 plastic bags containing 7.9 grammes of a crystalline solid containing 7.53 grammes of methamphetamine hydrochloride;
(b) 1 plastic bag containing 20 tablets containing a total of 0.09 gramme of amphetamine;
(c) 1 glass bottle inserted with a plastic straw and 1 glass tube with a bulb shape at one end containing 13 millilitres of a liquid containing traces of methamphetamine;
(d) 1 glass bottle inserted with a plastic tube and 1 glass tube with a bulb shape at one end containing 13 millilitres of a liquid containing traces of methamphetamine;
(e) 1 glass bottle inserted with a plastic tube and 1 glass tube with a bulb shape at one end containing 10 millilitres of a liquid containing traces of methamphetamine;
(f) 1 electronic scale; and
(g) 5 piles of resealable plastic bags.
6. Under verbal caution, the defendant admitted the 7 bags of ICE were bought by him at $7,000 and that he planned to repack them into smaller bags for reselling. Further, the tablets were given to him by the person beside him. He further admitted that the 3 ICE bottles were for he to consume ICE.
7. The defendant was tested positive for amphetamine.
8. The total value of dangerous drugs seized is around $11,452.5.
Criminal Record
9. The defendant has 2 previous records involving convictions of possession of dangerous drugs and possession of Part I poison.
Mitigation
10. The defendant is aged 29. He is single, born in Hong Kong and was educated up to higher diploma level.
11. Defence counsel submitted that the defendant has pleaded guilty. He is deeply remorseful and that he committed the offence out of greed, hoping to earn some fast money.
12. It was said that the result of the urine test supported that the defendant was an ICE abuser. Originally, defence counsel submitted that 25% of the drugs in the 2nd charge was for the defendant’s own consumption. Later, that was withdrawn.
13. She submitted that in view of the nature and quantity of the 2 types of drugs involved, the combined approach should be adopted and this court should use ICE in establishing the baseline for the sentencing starting point because it is the more potent drug seized. She also submitted that the starting point for trafficking in 19.62 grammes of ICE, being the aggregate of 12 grammes of ICE in the 1st charge and 7.62 grammes of ICE in the 2nd charge, is 90 months’ imprisonment. She also suggested an upward adjustment of 3 months for the additional drug MDMA, bringing the sentencing starting point to 93 months’ imprisonment. The defendant is entitled to one-third sentencing discount by reason of his guilty plea.
14. She referred this court to the cases of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 as well as The Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.
15. It is also said that the defendant used to work as a designer. But he later contracted HIV by reason of infection from the girlfriend and he was deeply depressed, and also because of the social instability and pandemic, he lost his job. He started taking drugs in order to relieve his depression symptoms. He also moved back to live with his parents, both of them retired. The defence counsel asked this court to deal with the defendant leniently.
Discussion
16. Before sentencing, this court has carefully considered all that was said and submitted on behalf of the defendant.
1st charge
17. On conviction upon indictment, the maximum sentence is a fine of $5 million and imprisonment for life.
18. This court agrees, as submitted by defence counsel, that relying on the case of Tam Yi Chun following the guideline in the Court of Appeal, the appropriate sentencing starting point for trafficking 12 grammes of ICE would be 85.6 months’ imprisonment.
19. In addition to ICE, the defendant also had 2 tablets containing 0.08 gramme of MDMA. In view of the addition of an extra dangerous drug, ie the presence of the relatively small quantity of MDMA, the court will aggravate the sentence starting point by 2 months to 87.6 months’ imprisonment.
20. Personal background of the defendant seldom affords the defendant a sentencing discount when faced with the conviction of trafficking in dangerous drugs.
21. The most valid mitigating factor in this case is the defendant’s guilty plea, for which he is entitled to one-third sentencing discount. Accordingly, for the 1st charge, he is sentenced to 58 months and 12 days’ imprisonment.
2nd charge
22. Drugs trafficked under this charge is 7.62 grammes of ICE.
23. Upon arrest and under caution, the defendant admitted he planned to repack the same into smaller packets for reselling. For this reason, as indicated by the court during the hearing, subject to a Newton hearing on the issue, the court tended not to accept the submission by defence counsel earlier that 25% of the drugs was for the defendant’s consumption. Defence counsel later indicated that the defendant did not wish to proceed with a Newton hearing and the submission was withdrawn. However, this court accepted the defendant was an abuser of ICE.
24. Again, the most valid mitigating factor under this charge is the defendant’s guilty plea, for which he is entitled to one-third sentencing discount.
25. The sentencing starting point in this charge is 72 months and 15 days’ imprisonment. After the one-third sentencing discount, it goes to 48 months and 10 days’ imprisonment. This court is willing to afford him sentencing discount by reason he is an abuser and bringing the sentence under this charge to 45 months’ imprisonment.
Overall sentence
26. The defendant committed the 2 offences on the same day. In essence, he is trafficking 19.62 grammes of ICE and 0.08 gramme of MDMA. The sentencing starting point for trafficking 19.62 grammes of ICE is 91.7 months’ imprisonment. The defendant trafficked 2 types of drugs, though MDMA was of small quantity, this amounts to an aggravating feature in sentencing. The sentencing starting point is therefore enhanced to 94 months’ imprisonment.
27. The defendant has pleaded guilty and is therefore entitled to full one-third sentencing discount, bringing the sentence to 62 months and 18 days’ imprisonment. As said earlier, the court is willing to afford the defendant a sentencing discount by reason that he is a drug abuser. The defendant is therefore sentenced to 59 months’ imprisonment, which this court considers a just and balanced sentence for the defendant, having regard to his total culpability in this case.
28. Accordingly, 19 days’ imprisonment in the sentence of the 2nd charge is to run consecutive to the sentence in the 1st charge, the rest to run concurrently.
29. The defendant is therefore sentenced to a total of 59 months’ imprisonment.
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( K Lo ) |
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Deputy District Judge |
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