COURT: The defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, on 6 May this year before a magistrate.
It is alleged that on 20 October 2022, on a road in Tsing Yi, New Territories, he unlawfully trafficked in 17.15 grammes of a crystalline solid containing 16.30 grammes of methamphetamine hydrochloride, which is commonly known as ‘Ice’.
According to the Summary of Facts to which he admitted at the time of the plea, around 9.30 pm on 20 October 2022 the police intercepted a private car driven by the defendant at a roadblock in Tsing Yi. At that time, the police saw that there were many banknotes scattered inside the storage compartment of the centre console of the car, so they demanded the defendant to alight for further enquiries.
When he alighted from the car, the defendant was holding a resealable plastic bag of substance in his right fist. Immediately after alighting from the car, he threw that bag of substance off the flyover. When subdued by the police he asked for a chance. That plastic bag of substance was recovered and found to contain 13.5 grammes of a crystalline solid containing 13.5 grammes of ‘Ice’ narcotic.
From the car, the police found inside a neck pillow on the driver’s seat two resealable plastic bags containing 3.25 grammes of a crystalline solid containing 2.8 grammes of ‘Ice’ narcotic and a large number of resealable plastic bags of different colours. The total amount of ‘Ice’ seized in this case was 16.3 grammes of ‘Ice’ narcotic with a total street value of about $11,748.
From the storage compartment of the centre console of the car, the police also found two mobile phones, cash of HK$2,561.10 and US$100.
In a subsequent video-recorded interview with the police, the defendant stated that he worked as a construction worker earning a daily wage of around $800. He said the bags inside the neck pillow contained the drug ‘Ice’ which he purchased from someone for around $3,000. He said he was the owner of the car.
At around 12.52 am on 21 October 2022, the police required the defendant to undergo a rapid oral fluid test to detect whether there was any specified illicit drug present in his oral fluid. The defendant told the police that he had consumed illicit drug a long time ago. Also the test result was negative.
The defendant was 31 years of age at the time of the offence and he is now 33 years old. He has one previous conviction for the offence of possession of dangerous drug in year 2012. Then on 13 March 2014 he was convicted of two charges of trafficking in dangerous drug and one charge of offering to traffic in dangerous drug. As a result, for those three charges he was sentenced to a total of 5 years and 8 months’ imprisonment. He was not discharged from prison until 31 August 2016.
In mitigation the defendant himself, his parents, his elder sister and also a taekwondo trainer, all had written to this court to ask for leniency.
The defendant was single and he claimed to be a drug addict of ‘Ice’ for about six years. That means throughout the period after he was discharged from prison in August 2016 he had been consuming drug, according to his own allegation.
In mitigation, counsel Ms Vickie Ling informed this court that he was the younger child of the family. He used to live together with his family members including his parents and elder sister before his arrest. He had received education up to Form 3 level, and he quitted school at the age of 16. Since then he worked as a restaurant waiter, hairdressing assistant, transportation worker, construction worker, renovation worker and part-time delivery driver.
After he was released from prison in August 2016 he worked as a construction and renovation worker, earning an average daily wage of $800. Also he was a part-time delivery driver.
Counsel said he committed the present offence because he was asked by a drug-dependent friend who lived in Tsing Yi to pick up the drug in Mong Kok. The friend had already paid for the drug, and he was asked to deliver the drug to the friend in Tsing Yi. So, after getting the drug he put it in his own trousers’ pocket. He agreed to help the friend because he himself was also an ‘Ice’ abuser. He said he did not receive any remuneration for delivering the drug to his friend.
Counsel claimed that the small bag of drug found from the neck pillow was for his own consumption because he was the sole owner and driver of the car at the time and that, as he had told the police, he purchased that amount of the drug at $3,000.
In respect of the cash found in the car, counsel said they were his own wages. Because he did not have a wallet, so he put the loose cash in the storage compartment of the car so that the cash would not fall off from his trousers’ pocket.
Counsel claimed that most of the drug found in this case was contained in the plastic bag that he threw away down the bridge. It was not in a readily distributable form and there was no weighing scale found in his possession. There was nothing to suggest that he would repack or otherwise deal with the bag of drug in any way. Counsel urged this court to accept his role as one of a courier, being at the bottom level of the drug hierarchy.
At first, in her written mitigation counsel urged this court to take into account the additional mitigation for self-consumption, saying that the quantity of the drug found hidden in the neck pillow was relatively small. But, given that the quantity of the drug found hidden in the neck pillow was relatively small, the defendant does not rely on that as additional mitigation for self-consumption sentencing discount.
Now, in her oral mitigation, counsel has given further information to this court upon being enquired by the court. In respect of the large number of plastic bags found in the neck pillow, counsel at first informed the court that according to her instruction, those bags were for the defendant’s own packing of the drug he used. Then, upon further enquiry by this court and having taken further instruction, counsel submitted that indeed on the day concerned some of the drugs being picked up was for his own consumption. So not all of the drug being picked up in Mong Kok was for delivery to his friend. He said the resealable plastic bags came together with a large bag of drug for delivery, so he just put them inside the neck pillow. But, in any event, counsel said that the defence does not rely on the claim of self-consumption as mitigating factor for further discount.
In any event, the mitigation of self-consumption of part of the drug is in contradiction with the result of the rapid oral fluid test because when the test was conducted on 21 October that year, it was negative. Also he told the police that he had consumed the drug a long time ago instead of telling the police that he was a regular consumer of the drug - I am referring to paragraph 6 in the Summary of Facts.
In sentencing the defendant, I take into account the approach specified by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, as modified by the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186. In the present case, the ‘Ice’ narcotic involved is one of 16.3 grammes. According to the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, trafficking between 10 to 70 grammes of ‘Ice’ narcotic will result in a starting point of 7 to 11 years’ imprisonment after trial. So mathematically, for 16.3 grammes of ‘Ice’ narcotic, the starting point would be one of 7 years and 5 months’ imprisonment.
The arithmetic calculation is suitable for people at the lowest level of the drug trafficking hierarchy such as courier and storekeeper. In the present case, even though a large number of plastic bags were found, I accept on the facts of the case the role of the defendant was one of being a courier, that is he was taking the drug back from the supplier to a certain place. So I will adopt 7 years and 5 months as my starting point, having taken into account his role and culpability in this matter.
I shall now come to any other aggravating features of this case. As I said, the defendant was convicted of possession of dangerous drug in year 2012. However he did not learn a lesson. About two years later, in 2014 he was convicted of two charges of trafficking in dangerous drug and another charge of offering to traffic in dangerous drug, and he was sentenced to 5 years and 8 months’ imprisonment. He was discharged in August 2016, around six years before he committed the present offence. But, as he admitted himself and as counsel said to this court, it seems that throughout all those years he had not quitted smoking or the consumption of drug, even though counsel said he only consumed the drug occasionally.
In any event, even though he was sentenced to over 5½ years’ imprisonment in 2014, apparently he did not learn his lesson because about six years after his discharge he committed the present offence. Taking into account all the circumstances, I consider that it is appropriate for me to exercise my discretion to treat him as a repeated offender for drug trafficking, and it would be reasonable and proportional to enhance his sentence by 3 months for that matter. So the notional sentence after trial should be one of 7 years and 8 months’ imprisonment.
As I had said earlier, I do not accept that he should be entitled to any further discount for the claim of self-consumption. In any event, counsel is not seeking any further discount for that matter.
So, adopting the starting point of 7 years and 8 months’ imprisonment, he is entitled to a full one-third discount as a result of his plea of guilty. After the one-third discount, I will sentence him to a total of 5 years and 1 month’s imprisonment. So that is the sentence to be imposed on the defendant, 5 years and 1 month.