COURT: The defendant is convicted of one charge of trafficking in dangerous drugs and one charge of possession of a dangerous drug.
The particulars of the 1st charge allege on the 5th day of January 2023, at Flat E, 16th Floor in Block 10 of Tai Hing Garden in Tuen Mun, he unlawfully trafficked in 16.96 grammes of methamphetamine hydrochloride narcotic, commonly known as ‘Ice’, and also 25.05 grammes of herbal cannabis. The particulars of the 2nd charge allege that on the same day and in the same place, he had in his possession 335 millilitres of a liquid containing 0.38 grammes of methamphetamine.
According to the Summary of Facts to which he agreed upon his plea of guilty, on 5 January 2023 at about 7.33 pm, the police intercepted the defendant as he was about to leave his flat and at that time he was carrying a bag containing cash of $120,000.
Upon the search of his flat, the police found altogether three bags of ‘Ice’ and seven bags of cannabis which are the subject of the 1st charge. In addition, two smoking pipes and some straws were also found. Packaging tools such as electronic scale, shovel, empty plastic bags, rolling papers and lighter were also found on the premises.
In the kitchen of the premises, the police found a modified glass bottle with a straw containing 74 millilitre of a liquid containing traces of ‘Ice’ and a modified plastic bottle with a straw containing 335 millilitres containing 0.38 grammes of methamphetamine, that is the subject matter of the 2nd charge.
The estimated street value of the ‘Ice’ seized was about $10,943 and the estimated street value of the herbal cannabis was about HK$5,010.
Upon his arrest, the defendant stated under caution in the video-recorded interview that the ‘Ice’ and the herbal cannabis seized belonged to him.
The defendant now admits that he was in possession of the ‘Ice’ and the herbal cannabis seized in the flat for the purpose of unlawful trafficking, and that he possessed the 0.38 grammes of methamphetamine in the liquid seized in the plastic bottle in the kitchen.
The defendant is now 61 years of age. He has four criminal convictions for offences that are unrelated to the present charges. He has attained Primary 3 education level and used to work as a renovation worker and a part-time taxi driver before his arrest. He was divorced with one son and one daughter. He is now re-married with a son, and both his wife and the son are staying in mainland China. He said that he suffered from high blood pleasure, high cholesterol levels and cardiac disease, and was on regular medication.
In respect of the 1st charge of trafficking, counsel Mr Victor Ho in his mitigation submitted that this court should apply the older guideline for the herbal cannabis because the new guideline was not yet laid out at the time of the offence, to which I agree.
Counsel urged this court to take into account the fact that the herbal cannabis in the 1st charge was only 25.05 grammes in weight, and that bearing in mind the difference in nature of the herbal cannabis together with the ‘Ice’, counsel said it would not be appropriate to apply the combined approach in the calculation of the sentence for cocktail drugs.
In sentencing the defendant, I do bear in mind the approach set out by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 in respect of trafficking in dangerous drugs, that is the subject matter of the 1st charge. The 1st charge involved a total of 25.05 grammes of herbal cannabis together with 16.96 grammes of ‘Ice’ narcotic. I agree with counsel that the old guideline for herbal cannabis should apply instead of the new guideline.
In respect of the amount of ‘Ice’ found in the 1st charge, counsel also asked this court to bear in mind the fact that maybe a small proportion of the amount of the ‘Ice’ was for his own consumption, and he invited this court to exercise its discretion to impose a certain discount for that matter.
I am not prepared to exercise my discretion to give any further discount in respect of that matter. I note that counsel relied on the fact that two glass bottles for the purpose of inhaling ‘Ice’ were found in the kitchen, that urine test of the defendant also showed that he tested positive for amphetamine, and he has no criminal record for trafficking.
Counsel submitted that he had the financial ability to purchase ‘Ice’ for his own consumption and that he took ‘Ice’ in the quantity of 1.5 grammes daily. However, the defendant is not prepared to give or call any evidence in support of his allegation that other than the drug stated in the 2nd charge for possession, any further amount found in the present premises was for his own consumption.
Now, of course, counsel does not rely on the case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 in which the Court of Appeal stated that when all of or a significant part of the proportion of the drugs were intended for the trafficker’s own consumption, then the person is entitled to between 10 per cent and 25 per cent of discount from the basic starting point.
In the case of HKSAR v Liu Ming Sze [2017] 1 HKLRD 297, the Court also said that up to 10 per cent of the amount cannot be considered to be a significant proportion of the drug. In any event, the sentencing court has a discretion to give a discount to reflect an element of self-consumption.
In the present case, I do bear in mind that the defendant is also convicted of possession of dangerous drug relating to a certain quantity of ‘Ice’ found in the bottle in the kitchen, and the fact that I am mindful to impose a concurrent sentence for the 2nd charge. In addition, on the facts of the case that the ‘Ice’ in the bottles was separately put in a totally different location from the other quantity of ‘Ice’ found in the premises.
On that basis, I am not prepared to exercise my discretion to grant any further discount for the fact that a very small amount of the ‘Ice’ was for his own consumption.
In respect of the 1st charge, it relates to a total of 16.96 grammes of ‘Ice’ narcotic and 25.05 grammes of herbal cannabis.
According to the old guideline of AG v Tuen Shui Ming [1995] 2 HKC 798, trafficking in under 2,000 grammes of herbal cannabis would attract a starting point of up to 4 months’ imprisonment. So on the mathematical calculation trafficking in 25.05 grammes of herbal cannabis would attract 6 days of imprisonment as a starting point.
In respect of the amount of ‘Ice’ narcotic, the appropriate starting point would be one of 7 years and 5 months’ imprisonment mathematically.
In respect of the role and culpability of the defendant, I do bear in mind, and as counsel admitted, that he was more than a bare storekeeper because he kept the drug on behalf of others and that two types of drugs were involved in the total quantity of the drugs.
However, I do accept that the small quantity of drug found in the kitchen, the ‘Ice’ found in the kitchen, was for his own self-consumption, but that would be considered separately in the 2nd charge.
Bearing in mind the very small quantity of the herbal cannabis involved in the 1st charge, the fact that it would not have made any significant change to the resulting sentence, I agree with counsel that it would not be appropriate to use the combined approach for cocktail drugs in the calculation of the overall starting point.
So, bearing in mind the role of the defendant, the fact that a quantity of packaging tools were also found in the premises, and at the time of his interception he was carrying the substantial amount of $120,000 out of the premises, apparently that amount of money was drug-related, so his role was also to give the drug money to the supplier or to his boss; and also the fact that two types of drugs were found in the premises, all of these go to his culpability in the offence.
Having considered all these factors, I consider the notional starting point after trial should be one of 7½ years, that is 7 years and 6 months’ imprisonment.
The defendant pleaded guilty to the offence at an early stage, as such he is entitled to the full one-third discount. In respect of the 1st charge, I will impose a sentence of 5 years’ imprisonment.
In respect of the 2nd charge, possession of a dangerous drug, there is no doubt that at the material time he was a bona fide user of ‘Ice’ from the facts of the case and as one can see from the urine test report. Taking into account the quantity of the ‘Ice’ involved, I consider that the appropriate starting point should be one of 12 months’ imprisonment.
I agree with counsel that the latent risk in this matter was quite low, given the fact that a very small quantity of ‘Ice’ was involved, also it was found in a modified plastic bottle in the kitchen and the bulk of the ‘Ice’ had already been counted in Count 1. In the circumstances, I would not add any amount to the starting point of 12 months, so 12 months is the starting point that I would adopt for the 2nd charge.
The defendant pleaded guilty to the 2nd charge in the earliest opportunity, as such he is entitled to the full one-third discount. So for the 2nd charge I will sentence him to 8 months’ imprisonment.
I do bear in mind the fact that the total sentence for the two charges should not be greater than that as if he was trafficking in the total amount of the drugs involved in the 1st and the 2nd charges. Also, bearing in mind the proximity in time and location, and the minimum quantity of the ‘Ice’ involved in the 2nd charge, I consider that it would be fair and just to impose a wholly concurrent sentence in respect of the two charges.
So the total sentence that he is going to face in respect of the two charges is one of 5 years’ imprisonment.