COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug. On 17 June 2022, in a structure in Yuen Long, New Territories, the defendant unlawfully trafficked in a dangerous drug, namely, 15.78 grammes of a crystalline solid containing 15.61 grammes of methamphetamine hydrochloride, ‘Ice’. These are the particulars of the charge.
On the material day, police officers arrived at a dwelling modified from a cargo container and found the defendant outside. They searched inside the premises and found in a box nine plastic bags containing the drugs of this charge. They also found a bag containing smaller empty transparent resealable bags as well as three digital scales. There appears to also have been devices for inhaling dangerous drugs as well.
The defendant was arrested, cautioned and admitted in a subsequent interview that he was living in the dwelling with his girlfriend and child. The drugs belonged to him and were for his own consumption. He had bought them within the
previous six-month period. He used the inhaling devices for inhaling ‘Ice’. In the Summary of Facts, he admitted the estimated retail value of the ‘Ice’ seized was at that time $9,089. He now admits and accepts he was trafficking in that amount of ‘Ice’.
Mitigation
Mr Khosa has said all he can say in mitigation on behalf of the defendant. He is 35 years old and has been in Hong Kong since 1992. He has a child with his girlfriend who is now looked after by the defendant’s mother. He was employed as a delivery worker prior to his arrest. I have been told he is a habitual user of ‘Ice’ himself. Of the ‘Ice’ seized, he would consume some and either share or sell the rest to friends.
However, Mr Khosa is not pushing for an additional discount on the basis that a substantial part of the dangerous drugs in question would be for his own consumption. Only if that were the case would an accused get a reduction of 10 to 25 per cent on top of the usual discount for a plea in a timely manner. Mr Khosa does urge this court to consider a slight discount to reflect this part of mitigation. The defendant’s best mitigation is his plea of guilty at the earliest opportunity.
The inhaling device is found as well as the fact he tested positive for methamphetamine upon arrest supports the mitigation he is a habitual user. Moreover, he has two previous convictions relating to drugs. In 2017, he was sentenced to 6 months’ imprisonment for trafficking in dangerous drugs, and in 2021, he was sentenced to 8 months’ imprisonment suspended for 3 years in TMCC 2258 of 2021 for possession of dangerous drugs. He is in breach of that suspended sentence.
Even when the court accepts an accused may consume some of the drugs as a habitual user, there is always the latent-risk factor to take into account. This, in my view, cancels out any small further discount I would have found appropriate here.
Trafficking Guidelines
I have considered all mitigation, facts of the case as well as tariff guidelines for trafficking methamphetamine hydrochloride.
I have considered the approach to sentencing those that traffic in dangerous drugs with the Court of Appeal’s guidance in the most recent authority, HKSAR v Lee Ming Ho [2024] HKCA 150.
I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
In the approach to sentencing, a number of steps have been identified which the court should take, such as assessing the gravity of the offence and applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors and, lastly, passing a sentence which is fair, just and balanced in all of the circumstances of not only the offence but the offender.
The first step is to assess the gravity of the offence and identify the applicable guidelines according to the drug ‘Ice’. The sentencing guideline is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, and the starting point for trafficking between 10 to 70 grammes of ‘Ice’ is 7 to 11 years’ imprisonment. Therefore, trafficking in 15.61 grammes would mathematically attract a starting point of 7 years and 4 months’ imprisonment.
As far as the second step is concerned, assessing role and culpability, on the defendant’s own admission, he would either sell or share his drugs with people and friends; an actual trafficker. However, even within this more serious category of an actual trafficker, an accused can have different levels of culpability and a more or less serious role.
I have decided to exercise my discretion and determine his sentence by the relevant tariff and the mathematical approach to a starting point according to quantity. This would be the third step. I therefore take a starting point of 7 years and 4 months’ imprisonment.
The fourth and fifth steps require me to consider whether there are any aggravating factors or any exceptional mitigating factors. I do not find any.
Defendant, please stand up. The defendant pleaded at the earliest opportunity and is entitled to a discount of one-third. After that discount is applied and rounded down, I sentence the defendant to 4 years and 10 months’ imprisonment.
The last step to take is to stand back and look at the overall sentence in order to ensure it is fair, just and balanced in all the circumstances of not only the offence but also the defendant. I am satisfied it is not unfair, imbalanced or unjust.
Therefore, for this charge, the defendant is sentenced to 4 years and 10 months’ imprisonment.
There is the question of his breach of a suspended sentence imposed in November 2021, only seven months into the suspended term of 3 years. Moreover, that offence was a drug-related offence. I will order the 8 months’ term of imprisonment to be activated and served consecutively to today’s sentence.
Accordingly, the defendant is sentenced to 5 years and 6 months’ imprisonment.