COURT: Defendant, on 24 October 2022, you pleaded guilty before a magistrate sitting at the Eastern Magistracy to a charge of trafficking in a dangerous drug. You admitted that on 8 July 2020, outside No. 60 Nathan Road, Tsim Sha Tsui, you trafficked in 12.4 grammes of a crystalline solid containing 12.3 grammes of methamphetamine hydrochloride.
The Summary of Facts to which you admitted can be simply put that on 8 July 2020, police officers were conducting a patrol along Nathan Road in Tsim Sha Tsui. They observed you acting furtively and therefore stopped you outside the entrance of Mirador Mansion, which is situated at 54-56B Nathan Road. The officers then escorted you to an area outside of No. 60 Nathan Road for a body search.
At that time, you threw a resealable plastic bag containing white crystalline solid onto the ground and that solid was the quantity of drugs as stated in the charge. You remained silent after arrest and caution and also remained silent in the subsequent video-recorded interview.
The course of the interception by you –- by the officers was captured by the CCTV outside Mirador Mansion and it showed you throwing the plastic bag of drugs onto the ground. Those photos have been attached to the court file.
The street value of the drugs was estimated to be approximately $8,159.
Defendant, you are 59 years of age. You were born in China in 1963 and was educated in the mainland up to primary level education. At the time of the offence, you worked as a chef in a restaurant with an income of approximately $26,000 a month. You have three adult children and have been divorced twice.
You have four previous convictions, none of which are related. The first was many years ago in 1979 and the latest in 2020 for gambling in a gambling establishment.
Your counsel, Ms Vivian Wong, has fully mitigated on your behalf and the crux of her mitigation is that as a result of your second divorce in 2003, you developed depression and as a result of which you had a mood disorder and therefore turned to drugs. And that was in 2003.
You had undergone psychiatric therapy in Kwai Chung Hospital and outpatient treatment at Pamela Youde Nethersole Eastern Hospital. There is a psychiatric report which is attached in support of your mitigation of which the psychiatrist confirmed that you had a history of dependence on cocaine, methamphetamine and hypnotics before your arrest, and you were diagnosed with polysubstance abuse, but you had no history of past psychiatric admissions.
Attached to the report, which is dated 18 January 2022, the psychiatrist’s notes states here that you were dependent, became dependent on ‘Ice’ and were a compulsive daily user of 175 and sometimes with friends and for business needs, that is, that you felt more attentive and alert and energetic to cope with work.
Ms Wong has submitted that though it is not conclusive, but the 175 referred to in the psychiatric report is in her submission equivalent to 1.75 grammes of ‘Ice’, which you were dependent on as your compulsive daily consumption. She said this is clear from the urine specimen upon your admission to Lai Chi Kok Reception Centre immediately after your arrest showed that you were tested positive for amphetamine, which is part of the drug ‘Ice’.
The crux of the mitigation by Ms Wong is that a significant proportion of the drugs you were trafficking in were for your own consumption. On the day in question, she says you had actually purchased that one bag of ‘Ice’ from a flat inside Mirador Mansion, which is a flat where you regularly purchased drugs. As you yourself admitted to the psychiatrist, not only was the ‘Ice’ purchased for self-consumption but for sharing with friends, what is commonly known as social trafficking.
It is Ms Wong’s submission that on your instructions, the quantity purchased on that day could last for about five days for your own consumption and for your friends when you and they took drugs together. On that basis, Ms Wong suggests that for the amount estimated for self-consumption from your habits in daily consumption rate, if consumed at 1.75 grammes a day, and the quantity involved is 12.3 grammes, it could last for about 5 days. That would equate to 8.75 grammes which were intended for your own self-consumption. And 8.75 grammes out of the 12.3 grammes is approximately 71 percent of drugs in that bag intended for self-consumption.
Ms Wong submits that the whole circumstances of the present case supports that you were an ‘Ice’ abuser and you had a habit of daily consumption as mentioned by the psychiatrist. I do accept that you are a drug dependent and that, as submitted by Ms Wong, a significant proportion of the drugs was for your self-consumption. However, as you rightly admitted, not all was for your self-consumption and some was for sharing and social trafficking with your friends.
The case of HKSAR v Choi Chun Wo [2008] 5 HKLRD 717 has been relied upon by Ms Wong. It is a clear principle that the threshold test for self-consumption was whether all or a significant proportion of the drugs was intended for the defendant’s own consumption. The key authority on this subject of self-consumption is of course the case of Wong Suet Hau. And of course the suggested range of discount for self-consumption between 10 percent and 25 percent is laid down in Chow Chun Sang.
In the circumstances of this case, defendant, I am satisfied that there is a significant proportion and the threshold is met. However, given the fact that there is a latent risk of trafficking and the fact that you admitted that some of the drugs was for social trafficking, I would consider a discount of approximately 10 percent from the starting point to be appropriate.
Defendant, you were trafficking in 12.3 grammes of ‘Ice’. The sentencing guideline case for trafficking in ‘Ice’ is that of HKSAR v Tam Yi Chun and in Tam Yi Chun, trafficking between 10 to 70 grammes will attract a sentence of between 7 to 11 years’ imprisonment after trial. Given the quantity of 12.3 grammes of trafficking in ‘Ice’, had you been convicted after trial, the appropriate starting point would be 7 years’ imprisonment.
As I have accepted that a significant proportion was for your own self-consumption, I reduce that starting point by 10 percent, which would make a starting point of 6 years and 3 months’ imprisonment.
There are no aggravating factors in the present case. This case was simply that you were intercepted on the street and admitted that the drugs were for your own consumption and for social trafficking. In reference to HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, there is no evidence that your culpability was more than that of a mere courier. In the circumstances, I give you a full one-third discount for your plea of guilty at the earliest opportunity.
You are sentenced to 4 years and 2 months’ imprisonment.