COURT: Defendant, you pleaded guilty to two charges on 2 November 2023 before a magistrate sitting at the Eastern Magistracy. The two charges were, firstly, of trafficking in dangerous drugs and in the 2nd charge it was that of failing to surrender to custody. As a result of your pleas of guilty, you were committed here to the Court of First Instance for sentence.
In Charge 1, you admitted that on 5 July 2021, at the lift lobby of the 21st Floor, Mei Yat House, Yat Tung Estate, No. 8 Yat Tung Street, Tung Chung, New Territories, you unlawfully trafficked in 13.8 grammes of a crystalline solid containing 13.4 grammes of methamphetamine hydrochloride.
In respect of 2nd charge, you admitted that on 8 February 2022, in Hong Kong, being a person admitted to bail, without reasonable cause, failed to surrender to custody as had been appointed by a court. This offence was contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221.
You had admitted the Summary of Facts which was dated 20 October 2023 and the facts in support of these two charges are as follows.
At around 11 pm on 5 July 2021, whilst police were conducting an anti-narcotics operation at the lift lobby on the 21st floor of Mei Yat House, Yat Tung Estate, you were seen walking out from a corridor looking suspicious. Upon a body search conducted on you, the drugs as quantified in Charge 1 was found inside your right front trouser pocket. The estimated street value of the drugs seized was $9,136.
A house search was conducted at your house in Lantau Island and a search uncovered no drugs or drug paraphernalia. Upon arrest and under caution, you said that the drugs seized from you were ‘Ice’. You had bought the ‘Ice’ earlier that day at about 3 pm from a male outside Sham Shui Po MTR Station for $4,300. You had intended to consume the ‘Ice’ at the staircase on the 21st floor of Mei Yat House.
In a subsequent video-recorded interview, you stated amongst other things that you had the habit of consuming drugs since you were 17 years old. You bought a large amount of drugs to benefit from a discount offered by the suppliers and to minimise the risk of being intercepted by the police. You had purchased a large quantity for you to consume and share with your friend who, like yourself, was a drug addict. You said the quantity would last you both for about a week.
Despite your reply under caution that these drugs were for your own consumption, you accept and admit through your plea of guilty that, on 5 July 2021, you were trafficking in 13.4 grammes of ‘Ice’ as stated in Charge 1.
In relation to Charge 2, you were formally charged for this present offence of trafficking in ‘Ice’ on 25 October 2021. You were released on court bail on 23 November 2021. You were due to appear at West Kowloon Court on 8 February 2022. However, you were absent from that hearing. A warrant of arrest was therefore issued. On 8 August 2022, you were intercepted by a police officer whilst you were sitting at the right front passenger seat of a private vehicle outside the North Lantau Hospital. Upon checking your identity, your wanted status was revealed.
I turn now to your background. You are 47 years of age. You are Filipino but born and grew up in Hong Kong. You had received education up to Form 1. You were divorced in 2016. You have three children aged 15, 13 and 11. Prior to your arrest, you were residing with your mother and elder sister in a village house in Pui O, Lantau Island. At the material time, you worked as a part-time warehouse worker and gardener earning about $20,000 a month.
Defendant, you have 5 previous criminal convictions of which two are related to drugs. You had been sentenced to DATC in 2022. You have never committed an offence of trafficking in dangerous drugs in the past.
As stated by your counsel, Ms Karen Lau, the reason for you committing this offence and purchasing the large quantity was that purchasing in bulk was to take advantage of the discount offered by the supplier and to minimise the risk of being intercepted by the police. You had purchased these drugs intended partly for your own consumption and for you to share with a friend, which in colloquial terms is known as “social trafficking”. A copy of the Tung Tau Correctional Institution shows that a urine test report conducted on you showed when you were admitted to Lai Chi Kok on 9 August 2022 positive for amphetamine, that is, ‘Ice’.
In relation to Charge 2, the reason why you did not surrender to court in time, Ms Lau says, is because you had foolishly wanted to buy time to earn money because you feared that your children would lose support if you were remanded in custody.
Ms Lau has not submitted in your mitigation that any or a significant part of the drugs were for your own consumption.
I turn now to sentence. The sentence approach to sentencing in drug trafficking cases in Charge 1 is laid down in the cases of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and complemented in HKSAR v Lee Ming Ho [2024] HKCA 150. In following the principles and steps set out in Herry Jane Yusuph, first, the court must assess the gravity of the offence and identify the relevant band applicable to the quantity of drugs concerned.
The tariff case for the drug methamphetamine hydrochloride, commonly known as ‘Ice’, is set out in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. Pursuant to the tariff, where an amount trafficked is between 10 and 70 grammes of ‘Ice’, the Court of Appeal had decided that the starting point should be between 7 years to 11 years after trial. Here, the amount is 13.4 grammes of ‘Ice’.
The second step is to assess the role and culpability that you played in trafficking in this offence based on the evidence. In this case, defendant, you say that you purchased the quantity of ‘Ice’ in bulk some for your own consumption and for the purpose of sharing with a friend. You, however, were found at a place very far away from your place of abode in a residential building on the 21st floor late at night at 11 pm. It is clear from that and it is admitted through your plea of guilty that you were intending to traffic in these drugs.
Taking into account now the third step as to where in the guidelines you should lie in that band, I consider that an appropriate notional starting point had you been convicted after trial would be one of 7 years’ imprisonment.
Defendant, there are no aggravating features in this case although you have had two charges of possession of dangerous drugs, which are related to dangerous drugs, you have no previous similar criminal record.
As to the fifth step of any mitigating factors, the sole and most significant mitigating factor is your early plea of guilty, for that you should be granted the one-third discount. The notional starting point, therefore, had you been convicted after trial, being one of 7 years’ imprisonment and giving you the one-third discount, the term for Charge 1 that you shall serve is 4 years and 8 months’ imprisonment.
For Charge 2, defendant, that charge is failing to surrender to custody, you had a court hearing to attend to on 8 February 2022 and you deliberately did not attend the hearing as you say that you wanted to earn more money for your children. This is a deliberate breach of the law, knowing that you had to attend court. You are not new to committing criminal offences.
You do know the importance of keeping to your court dates. In the circumstances had you been convicted after trial, I would have taken a starting point of 3 months’ imprisonment. You pleaded guilty at the earliest opportunity and I shall reduce that term to one of 2 months’ imprisonment.
Now, defendant, in sentencing you for these two offences, I have regard to the principle of totality. These are separate and distinct offences and I consider that they should be served partly consecutively and partly concurrently. I order 7 days of Charge 2 to run consecutive to Charge 1 and the remainder of the term to run concurrently.
Therefore, defendant, the total term of imprisonment to which you shall serve is 4 years 8 months and 7 days’ imprisonment.