COURT: The defendant pleaded guilty in the Magistrates’ Court to one count of trafficking in a dangerous drug, trafficking in 13.4 grammes of a crystalline solid containing 13.3 grammes of methamphetamine hydrochloride, ‘Ice’. He was committed for sentence on 13 July 2023 and today confirms his plea as well as his agreement to the amended Summary of Facts.
Facts and Mitigation
On 24 December 2021, the defendant was stopped and searched by police officers outside Exit C of Kennedy Town MTR Station for looking suspicious and acting furtively. The police found a transparent resealable plastic bag containing the ‘Ice’ in the defendant’s right rear shorts pocket.
The defendant now admits that at the material time he was unlawfully trafficking in that amount of ‘Ice’.
The defendant is not a man with a clear record. He has 20 previous convictions from 14 court appearances, of which seven relate to possession of dangerous drugs or equipment for the purposes of smoking, injecting or inhaling dangerous drugs. This is his first conviction for trafficking dangerous drugs.
According to written mitigation, the defendant is now 38 years old, single and educated up to Form 1 level. He lives with family members near Aberdeen. His best mitigation is his plea of guilty. I have also seen a letter from the defendant’s mother.
Ms Lee has said all she can say on behalf of the defendant. He is a self-confessed drug abuser. Her instructions are that the defendant bought this quantity of drugs because it was cheaper to buy in a large amount. He would consume some of the drugs himself whilst he would sell what he can to finance this drug habit. However, Ms Lee is not suggesting that a significant proportion of the drugs was for his own consumption, and therefore this will not be taken into account in sentencing.
Sentencing
It is well established that trafficking in a dangerous drug is a very serious offence. I have considered the approach to sentencing those that do traffic in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. That was very recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.
In the approach to sentencing, six 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 the circumstances of both the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drugs seized. The tariff for the drug methamphetamine hydrochloride is set out in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. In that case, it was held that the sentence for trafficking between 10 to 70 grammes is 7 to 11 years’ imprisonment after trial. Here, we have 13.3 grammes of methamphetamine. Mathematically speaking, that amount of ‘Ice’ attracts a starting point of 7 years and 3 months’ imprisonment.
The second step of the six steps is to assess the defendant’s role and culpability based on the evidence. The drugs were found in his pocket whilst out in public. When arrested, he maintained his right to silence and gave no explanation as to the drugs found in his possession. However, now in mitigation, it has been admitted he had only bought the drugs that day and had consumed a small amount in a public lavatory just prior to his arrest. The drugs were found in one plastic bag and not many plastic bags. In fact, the plastic bag was marked “135”, suggesting the total weight of the ‘Ice’ in it. The government chemist found 13.3 grammes in it.
The fact that all the drugs were in one bag would suggest he was not out in public trafficking when arrested. There is no other evidence to refute his instructions that he had bought the entire bag and was going to take it home. He openly now admits he would more than likely sell some of it at a later time or stage. This does put him in a more serious light, a trafficker as opposed to a courier and/or storekeeper.
This means the starting point is not merely determined by the relevant tariffs and the quantity of dangerous drugs involved; not merely a mathematical approach. However, in light of his role and considering the third step of where within the guideline the defendant should lie, I will adjust the starting point of 7 years and 3 months upwards by 3 months.
The fourth and fifth steps require me to consider whether there are any aggravating factors or any exceptional mitigating factors. I find neither any aggravating or any mitigating factors apply or exist in this case other than the defendant’s plea at the earliest opportunity.
The defendant will benefit from a discount of one-third from the starting point of 7 years and 6 months’ imprisonment. Once that discount is applied, the starting point is reduced to 5 years’ imprisonment.
The last step is to stand back and look at the overall sentence in order to ensure that it is fair, just and balanced in all the circumstances, not only the offence but also the defendant. In this case, the sentence is not unfair, imbalanced or unjust.
Accordingly, the defendant is sentenced to 5 years’ imprisonment for this offence. Do you understand?
ACCUSED: Yes.