The defendants, D1 and D2, pleaded guilty in the Magistrates’ Court to one joint charge of trafficking in 13.4 grammes of a crystalline solid containing 13.2 grammes of methamphetamine hydrochloride, which is commonly known as ‘Ice’. Before this court, both of them confirmed their pleas and agreement to the prosecution’s Summary of Facts.
Facts
The facts are similar and straightforward. The incident took place in the small hours of 6 July 2021, near the junction of Fa Yuen Street and Nelson Street in Mong Kok. D1 and D2 were respectively the driver and the front passenger of a private vehicle (the “Car”), which was intercepted by police officers, PW1 and 2, because of the suspicious conduct of the defendants at the time.
Upon search of the Car, the plastic bag containing the ‘Ice’ which was the subject matter of the charge with an estimated street value of HK$8,871 was found in the open storage compartment of the front passenger’s seat.
On D1’s person, there were two mobile phones and cash of HK$15,676.2.
Under caution, he said that he rented the Car from a third party. He said that D2 was the brother of his friend and he had known D2 for about a month. He said the cash found on him was his salary as a chef.
On D2’s person, there were also two mobile phones and he had cash of $270. Under caution, D2 also said D1 was the friend of his brother and that D1 had taken him for a ride. As to the HK$270, he said it was pocket money given by his mother.
Both D1 and D2 now admit that at all material times, they knowingly possessed the ‘Ice’ for the purpose of unlawful trafficking.
D1’s Antecedent
D1 was born in Hong Kong. He is now aged 38 and was 35 at the time of the offence. He received secondary education. He is single and lived with his parents in a public housing unit in Tsing Yi, Kowloon. He worked as a cook at the time of his arrest.
D1 has seven court appearances with a total of 17 previous convictions, five of which were drug related. The prosecution confirmed that D1 was on bail for the offences in WK4624/2021 (namely, ‘possession of dangerous drugs’, ‘possession of pipe/equipment fit and intended for inhaling dangerous drugs’, ‘resisting police officer’, and ‘possession of offensive weapon in public place’ whilst he committed the present offence and was sentenced on 22 April 2022 to a total imprisonment term of 10 months. Besides, he was also on immigration bail since 4 March 2021 regarding a case of ‘conspiracy to defraud’ for which he was sentenced on 27 February 2024 to a total imprisonment term of 15 months.
D2’s Antecedent
D2 was born on the mainland and is now aged 21 and was aged 18 at the time of the offence. He was educated up to primary level. He is single and lives with his grandmother in a public housing unit in Tsz Wan Shan, Kowloon. He was unemployed at the time of his arrest. He has no previous conviction.
Sentence
The approach to the sentence of the offence of trafficking is laid down in HKSAR v Herry Jane Yusuph which is further clarified in HKSAR v Lee Ming Ho. One of the more salient changes is the moving away from a rigid arithmetical approach with starting points and sentences based purely on narcotic quantity, to a more discretionary approach involving an assessment of the offender’s role and culpability. However, the quantity of the dangerous drugs involved remains the primary determinant in sentencing.
The tariffs for trafficking in ‘Ice’ are provided in HKSAR v Tam Yi Chun and the applicable guideline band for trafficking between 10 grammes and 70 grammes of the narcotic is 7 to 11 years’ imprisonment.
Next, regarding the roles and culpability of the defendants. They now agree that they procured the dangerous drug, with a view to resell them to others at a profit. Therefore, the defendants were not mere couriers. Rather, they were involved in actual trafficking.
Thirdly, based on the quantity of the ‘Ice’ under consideration alone, the arithmetical starting point for the offence would be 86 months’ imprisonment.
Fourthly, there are aggravating factors present. As aforesaid, the defendants were actual traffickers rather than mere couriers or storekeepers. In my assessment, for this factor alone an enhancement of 6 months would be appropriate. Furthermore, while D2 was technically not a minor for the purpose of section 56A of the Dangerous Drugs Ordinance, I cannot ignore the fact that the present offence occurred at the time when it was just a few months after D2 had turned 18, whereas D1 was much older and had a series of different criminal records. A ready inference to be drawn is that D1 was the dominant and more active participant between the two.
Moreover, D1’s record of similar drug related convictions is also an aggravating factor. For D1’s more important role in the offence and his previous similar convictions, I impose another 6 months to his sentence. In this regard, D1 should count himself lucky. This is because had the present offence taken place a few months earlier, when D2 was still a minor, a much higher enhancement could be expected (HKSAR v Leung King Hung) which was handed down last week. Therefore, before considering any applicable mitigating factors in favour of the defendants, the sentence of D1 would be 98 months’ imprisonment and that of D2 would be 92 months’ imprisonment.
Lastly, as regards mitigation, apart from D1 and D2’s timely plea, I can see no other mitigating factors which may reduce their sentences. Therefore, applying the customary one-third discount for their plea and rounding off the figures, the resultant sentence of D1 is 65 months’ imprisonment and that of D2 is 61 months’ imprisonment.
I have not ignored the fact that D1 committed the present offence while he was on bail for his previous case which was a wholly separate and distinct drug-related offence (committed on 15 May 2021). Besides, he was also on immigration bail at the time. Now that D1 had already served the sentences of his two aforesaid previous cases, the issue is whether and how his sentence for the present offence should be adjusted in view of totality (see HKSAR v Lee Ming Yin and HKSAR v Leung Yui Ming judgment in Chinese). Now, having stepped back and looked at the matter in the round, I am satisfied that the proper order is not to make any adjustments in this regard.
Conclusion
Based on the above, D1 is sentenced to 65 months’ imprisonment and D2 is sentenced to 61 months’ imprisonment.