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DCCC 139/2017
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 139 OF 2017
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| Before: |
H.H. Judge G. Lam |
| Present: |
Ms. Joyce WU, counsel on fiat, for HKSAR.
Mr. Jon WONG instructed by M/s George Chan & Co., assigned by the Director of Legal Aid, for the defendant.
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| Offence: |
Trafficking in a dangerous drug（販運危險藥物） |
REASONS FOR SENTENCE
1. The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is "ICE".
Summary of Facts
2. About 11:15 p.m. on 19 November 2016, police officers stopped the defendant for enquiry outside Ground Floor, No.26 Tsuen Fu Street in Tsuen Wan.
3. Upon search, 5 transparent resealable plastic bags which contained a total of 6.59 grammes of a crystalline solid containing 6.51 grammes of methamphetamine hydrochloride were found in the defendant's waist bag. Under caution, the defendant admitted that he bought the "ICE" for self-consumption.
4. In his video recorded interview, the defendant explained how, where and when he purchased the drug. He claimed that after purchasing the drug in Mongkok that evening, he went to Tsuen Wan to look for a restaurant to have a late dinner with friends. The defendant also mentioned that he was addicted to "ICE" and that he lives in Tsz Wan Shan.
5. The defendant now admits that he possessed the "ICE" for the purpose of unlawful trafficking.
Mitigation & Sentence
6. The defendant is 32, single and has a 5-year-old daughter. He has 11 conviction records, which included 8 drug-related offences with 7 "simple possession" and 1 "Trafficking". His last conviction was a "simple possession" offence, for which he was sentenced to 6 months' imprisonment in August 2016[1]. Defence counsel Mr. WONG informed me that the defendant was a transportation worker[2] earning $500 per day.
7. In mitigation, Mr. WONG submitted that the defendant claims self-consumption for an additional discount of his sentence. Mr. WONG stated that 3 out of 5 bags of the "ICE" found (a total of 3.19 grammes) were intended for the defendant's own consumption. The defendant purchased the 5 bags of "ICE" for himself and a friend. They purchased that quantity jointly in order to enjoy a price discount. In the evening of his arrest, the defendant was about to deliver the other 2 bags to his friend. Mr. WONG stressed that the defendant was not a professional drug trafficker; he received no monetary gain for purchasing the drug on behalf of his friend. Mitigation letters were placed before me; their contents are duly noted.
8. Ms. WU for the prosecution indicated that she takes a neutral stand on the issue of self-consumption.
9. The Court of Appeal has laid down clear sentencing guidelines for trafficking in "ICE" (see HKSAR v TAM Yi Chun [2014] 3 HKLRD 691). For up to 10 grammes, the sentence ranges from 3 to 7 years' imprisonment. In the present case, the defendant trafficked in 6.51 grammes. The appropriate starting point is 5.5 years.
10. Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[3]. The defendant has numerous conviction records of "simple possession" and has been sentenced to a Drug Addiction Treatment Centre. His urine sample collected on 22 November 2016 (3 days after his arrest) was tested positive for amphetamine. I accept that he could have been an "ICE" user at the time of the present offence.
11. As to the quantity claimed for self-consumption, based on the packaging of the drug, the defendant's story seems plausible. In the absence of evidence which shows otherwise, I accept that about half of the "ICE" found, which is a significant proportion, was for the defendant's own consumption[4] and that he was merely purchasing the drug jointly with a friend and delivering the other 2 bags to his friend without any monetary gain. I am prepared to reduce the sentence to 56 months[5] to reflect the discount for self-consumption.
12. Finally, with the indication of a guilty plea before trial, I grant a 25% discount, reducing the sentence further to 42 months[6]. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 42 months' imprisonment.
[1] Just 3 months before the present offence.
[2] See his employer's letter date 8 February 2017. It is obvious that the defendant committed the present offence shortly after he was released from his previous sentence.
[3] See HKSAR v CHOW Chun Sang[2012] 2 HKLRD 1121; HKSAR v WONG Suet Hau & another [2002] 1 HKLRD 69 and HKSAR v CHEUK Kin ManCACC 294/2009 (English translation).
[4] See HKSAR v LIU Ming Sze [2017] 1 HKLRD 297.
[5] In CHOW Chun Sang, Yeung VP held "We are of the view that in drug trafficking cases, 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 somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant." (paragraph 19, p.1126)
[6] See HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.
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