COURT: The defendant pleaded guilty to two counts of trafficking in dangerous drug(s), contrary to section 4(1)(a) and 4 (3) of the Dangerous Drugs Ordinance, Chapter 134, before a magistrate on 23 November 2023.
In respect of the 1st charge, it is alleged that on the 5th day of November 2021, outside King Hing Building at No. 97 Fa Yuen Street, Mong Kok, he trafficked in 7.31 grammes of ‘Ice’ narcotic - methamphetamine hydrochloride (known as ‘Ice’). In respect of the 2nd count, he is alleged that on the same day at Flat 8, Room 4C on the 4th Floor of King Hing Building, that is the same building, he trafficked in 29.47 grammes of ‘Ice’ narcotic and 3.84 grammes of cocaine.
The total quantity of narcotics involved are 36.78 grammes of ‘Ice’ and 3.84 grammes of cocaine.
According to the Summary of Facts admitted by the defendant, on 5 November 2021 at about 8 pm, he was seen coming out from the said building, that is the King Hing Building at No. 97 Fa Yuen Street, Mong Kok, by the police. Upon body search, the police found adhered to his left shoulder one plastic bag of ‘Ice’, and inside his underpants, a tissue paper containing another plastic bag of ‘Ice’. The total quantity of the ‘Ice’ involved is 7.31 grammes of ‘Ice’ narcotic, that is the subject matter of the 1st charge.
At the time of his arrest, he has on his person a key for the flat at Room 8, Flat 4C on the 4th floor of the said building and also cash of $43,121 on him.
He was taken back to the flat and searched. Inside the flat the police found a total of two plastic bags of cocaine, four plastic bags of ‘Ice’, one ‘Ice’ bottle which is an inhaling device and one plastic bottle containing 17 millilitres of a liquid containing traces of ‘Ice’, a large amount of resealable plastic bags, one electronic scale and one lighter.
The total quantity of narcotics involved in respect of the 2nd count of the drugs found in the flat are 29.47 grammes of ‘Ice’ narcotic and 3.84 grammes of cocaine narcotic.
He was arrested and stated that under caution that the ‘Ice’ and the ‘Coke’ were for his own consumption and the bottle was for his consumption of the ‘Ice’.
In a subsequent video-recorded interview, he claimed that he knew the drugs found on his person were dangerous drugs. He said he bought the ‘Ice’ and the cocaine from somebody. The 28 grammes of ‘Ice’ were bought at the price of $9,000 and seven grammes of cocaine were bought at the price of about $4,000.
He said he had the habit of consuming drugs for over 10 years. He would consume about 1 gramme of ‘Ice’ daily, and 0.5 to 1 gramme of cocaine on each occasion. He said the tenant of the flat was somebody called K, and that he started to go to the flat to consume drugs about three months ago. He would pay $800 to $1,000 to K as rental.
He brought the drugs with him at the time when he went out so that he could consume the drugs when he was playing mahjong overnight. He said the ‘Ice’ bottle found in the flat was used for consuming ‘Ice’, and the lighter was used for heating up the ‘Ice’ to facilitate his consumption. In respect of the cash found on his person, he said that they were carried by him for playing mahjong.
The total estimated retail price of the cocaine and the ‘Ice’ found in the two charges amounts to $25,510.
He now admits that he was in possession of all the dangerous drugs seized from him and at the flat for the purpose of unlawful trafficking.
The defendant is now 59 years of age. He was 56 years old at the time of the arrest. He has a total of 10 sets of criminal convictions, including four convictions for the offence of trafficking in dangerous drugs, four convictions for possession of dangerous drugs, and one conviction for the possession of Part I poison.
In respect of his last conviction for trafficking in dangerous drugs, on 31 May 2016 he was sentenced to 7½ years’ imprisonment. I understand that he was released from prison on 6 August 2020, just a few years ago.
He has received Form 3 education and he is single. According to the antecedent statement and confirmed by counsel, he was unemployed at the time of his arrest. That begs the question how come he had the money to rent the flat and to buy the drugs, not to mention taking out more than $43,000 to play mahjong on that occasion, on the night of his arrest.
In mitigation, counsel Ms Lorinda Lau urged this court to take into account the fact that part of the drugs found are basically for his own personal consumption. Counsel said this claim is supported by the urine test report conducted by the CSD upon his admission to the Lai Chi Kok Reception Centre on 11 November 2021, about six days after he was arrested, and he was found to be positive with the test for amphetamine, that is ‘Ice’. Also counsel urged this court to take into account the fact that upon his arrest, he immediately informed the police that the drugs were for his own consumption, the ‘Ice’ bottle was found inside the flat, and that also the lighter was inside the flat.
So counsel urged this court to give some additional discount for his consumption. Counsel agreed that no Newton inquiry is required and she would just rely on the facts of his admission to the police that the drugs were for his own consumption, the seizure of the consumption paraphernalia (that is the inhaling device) and also the urine test report from CSD.
In respect of his criminal convictions, counsel urged this court to take into account the fact that his last conviction was in May 2016, that is some eight years ago. His last drug trafficking conviction was committed also some years ago. Counsel urged this court not to aggravate the sentence because of his previous convictions, especially for the drug offences. Counsel also acknowledged the fact that more than one type of drug was involved and it would amount to an aggravating feature.
Counsel urged this court to adopt the combined approach because this is a cocktail drugs case, that it would be appropriate to adopt 9 years as the starting point, and to give him a discount up to 25 per cent because of the self-consumption factor.
Counsel urged this court to take into account his rather senior age, that the street value of the drugs were not too high, that he managed to treat his drug addiction while serving sentence, that he is remorseful and he pleaded guilty at the earliest opportunity.
I should point out at this stage that other than the fact that he pleaded guilty at the very first opportunity, indeed everything about his age or personal background do not amount to any mitigating feature. I will say something more about his criminal convictions and the claim of self-consumption later.
Taking into account the facts of this case, the proximity of time and location, I will sentence the defendant on the basis that he was in overall possession of the drugs in the two charges. So I will determine the appropriate overall starting point of sentence for the total amount of drugs involved before imposing the sentence for individual charges.
In calculating the appropriate sentence, I also have had regard to the principles enunciated by the Court of Appeal in the case of Herry Jane Yusuph [2021] 1 HKLRD 290, the six-step approach.
In this particular case, the total quantity of narcotics involved were 36.78 grammes of ‘Ice’ and 3.84 grammes of cocaine. So the total quantity of narcotics is 40.62 grammes.
To sentence the defendant on the individual approach on the total quantity of the narcotics would produce a starting point of about 11 years and 11 months which would be too high and does not properly reflect the justice of the case. To achieve a reasonable and realistic sentence, I will adopt the combined approach which involves the upward adjustment from the starting point of the base drug.
In the present case, ‘Ice’ is the more serious drug in terms of its potency and with predominant quantity. So I would use ‘Ice’ as the base drug. In determining the upward adjustment for the remaining narcotics, I examine the overall starting point by checking it against the absurdity test, the conversion test and the ratio test.
Under the absurdity test, the overall starting point would be about 9 years. Under the conversion test, the overall starting point based on ‘Ice’ would be about 8 years and 10 months’ imprisonment. The overall starting point based on the ratio test is about 8 years and 10 months’ imprisonment.
I am satisfied that the defendant in this case, his role was being a courier and also a storekeeper in respect of the drugs found in the flat. However, I do bear in mind the fact that there are a number of resealable plastic bags found in the flat, the street value of the drugs concerned, the finding of an electronic scale, the fact that he was unemployed and the seizure of a large quantity of cash on his person when he claimed he was being unemployed.
Taking into account all the circumstances, his role as a courier and his culpability in this case, I will adopt for Charges 1 and 2 an overall starting point of 8 years and 10 months’ imprisonment.
In this case two kinds of drugs were seized, ‘Ice’ and cocaine, even though they were separately packed. I have had regard to the two possible aggravating features, namely, firstly, the ability of the trafficker to cater to a wider market, and secondly the effect on users of combination of the dangerous drugs. And on this basis, I further enhance the starting point by 2 months. Therefore the notional starting points after trial is one of 9 years.
I take into account the criminal convictions of the defendant and I am satisfied that he is a repeated offender, especially he has a number of drug-related convictions - four for the offence of trafficking in dangerous drug and four for possession of dangerous drugs. It appears that all the previous sentences being imposed were not sufficient to deter him from committing similar offences.
Bearing in mind all the circumstances, and because of the fact that he was a persistent offender, I will treat that as an aggravating feature to enhance the starting point further by 1 year.
So the overall starting point for both Charges 1 and 2 to be adopted after trial would be 10 years’ imprisonment.
I shall now come to the claim of self-consumption. It was submitted by counsel that some of the drugs were for his own consumption. Counsel did not identify the amount but left this matter in the hands of the court to decide.
The guiding principle for a sentencing court in respect of the claim of self-consumption have been set out in a number of Court of Appeal decisions. The factors to be considered as suggested in the case of Wong Suet Hau [2002] 1 HKLRD 69 include:
- the quantity of the drugs involved, their value;
- the general circumstances including how the drugs are wrapped and how many packets or wraps are there;
- where the drugs have been found;
- the presence of any paraphernalia associated with the drugs including items for packaging, weighing and diluting of the drugs, and items for the consumption of the drugs;
- whether the defendant is an addict;
- any explanation given by him following the arrest;
- his general means, his ability to pay for the drugs and otherwise by trafficking; and
- his criminal record in respect of previous convictions for drug offences.
Usually, a court will be able to determine the issue from these factors without a Newton hearing. It needs to be borne in mind that even possession of drugs for self-consumption itself carries a term of imprisonment with possible enhancement for the latent risk that the drugs will be accessed by or distributed to others.
I do bear in mind the principle stated in the case of Chow Chun Sang [2012] 2 HKLRD 1121. In this case the Court of Appeal held that “when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somehow between 10 per cent and 25 per cent of the basic starting point.”
In determining the issue of self-consumption, the sentencing court must first find that a significant proportion of the drugs were to be consumed by the defendant. If he does not meet this threshold, he is not entitled to the discount suggested in the case of Chow Chun Sang. If he does meet it, the sentencing court must then assess the amount of discount that it should award from the adopted starting point.
In any event, a sentencing court has a discretion to discount a sentence to reflect an element of self-consumption. It is fundamental that a claim of self-consumption needs to be established to the court’s accepted threshold, that the court has to be satisfied that a significant proportion of the drugs were for his own consumption, before a further discount is granted.
In respect of the facts in this particular case, while on one hand I accept that at the time of his arrest he was a drug addict as revealed by the urine test report and also the finding of the drug consumption, the inhaler, the paraphernalia inside the flat, on the other hand it appears to me that he was also actively or significantly involved in the trafficking of the drugs found on him and in the premises as one can infer from the large number of resealable transparent plastic bags found in the premises, the number of packages, the presence of an electronic scale.
More importantly the court can assess this matter after considering his means. I was informed and it was confirmed at the material time he was unemployed. He stated under caution that at that time he did spend money to rent the flat from a friend so the could use this particular flat for consumption. The value of all the drugs found on him and in the flat amounted to over $25,000 estimated retail price. Comparing that with the price that he paid for the purchase of the drugs earlier, he stand to earn quite a large amount of money from the trafficking or the selling of the drugs in due course.
So, in the circumstances, I would consider that he was actively involved in the drug trafficking activities. I cannot assess whether a significant amount of the drugs seized on that day were being used for his own consumption or only a very small amount was being used for his own consumption, bearing in mind his lack of means, the quantity and the value of the drugs found.
In all the circumstances, I am not satisfied that there is a significant proportion of the drugs intended for his own self-consumption, and I decline to give him any further discount for that particular matter.
So coming back to the overall starting point for this two counts, Charges 1 and 2. The overall starting point is one of 10 years, having taken into account all the aggravating feature and enhancement. He is entitled to a one-third discount because of his early plea of guilty. So the overall sentence to be imposed for the two charges is one of 6 years and 8 months’ imprisonment.
I shall now come back to the individual sentence for the two charges. In respect of the 1st charge, I will adopt an overall starting point of 6 years after trial, that is after taking into account all the aggravating features. And after the one-third discount, he is sentenced to 4 years for the 1st charge.
In respect of the 2nd charge, I will adopt an overall starting point of 9 years, having taken into account all the enhancement or the aggravating features. So after the one-third discount, he is sentenced to 6 years’ imprisonment.
I order that 8 months of the sentence in the 2nd charge to run consecutively to the sentence in the 1st charge. So the total sentence is one of 6 years and 8 months’ imprisonment and that is the sentence I impose.