COURT: The defendant pleaded guilty to two charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, before a magistrate on 2 May this year.
The 1st charge alleges that on 26 April 2022, outside a flat in Sham Shui Po, he unlawfully trafficked in 50 grammes of a crystalline solid containing 45 grammes of methamphetamine hydrochloride which is commonly known as ‘Ice’.
The 2nd charge alleges that on the same day, inside that particular flat, he unlawfully trafficked in 33.01 grammes of a crystalline solid containing 32.97 grammes of methamphetamine hydrochloride.
According to the Summary of Factors to which he pleaded guilty and admitted to, around 2 pm on 26 April 2022, the police intercepted the defendant as he left the flat on Mezzanine Floor, No. 22 Yiu Tung Street, Sham Shui Po (hereafter I will refer to that as “the Flat”). Upon search, four transparent resealable plastic bags containing the drug particularised in Charge 1 were found in the right front pocket of the pair of shorts that he was wearing. Three mobile phones and cash of $675 were also found on his person. Upon arrest, he stated under caution that the substances found on him had nothing to do with his girlfriend.
On the strength of a search warrant, the police searched the Flat. The girlfriend was inside the Flat at the material time. Next to a pillow on the bed, the police found one transparent resealable plastic bag containing a tissue paper wrapping another plastic resealable plastic bag containing 4.57 grammes of methamphetamine hydrochloride, one digital scale and a plastic box containing some Part 1 poison.
Near the end of the bed, the police found a plastic box containing 184 transparent resealable plastic bags. And on a shelf next to the bed, the police found one black zipper pouch containing four transparent resealable plastic bags containing 28.4 grammes of a crystalline solid containing 28.4 grammes of methamphetamine hydrochloride, and one transparent resealable plastic bag containing a metal spoon.
So the total quantity of the drug seized from the defendant and at the Flat was 83.01 grammes of a crystalline solid containing 77.97 grammes of methamphetamine hydrochloride. The estimated street value was about HK$47,482.
Upon further arrest, he stated under caution that the illicit drug found inside the Flat had nothing to do with his girlfriend.
In a subsequent video-recorded interview with the police, he stated under caution that he knew all the drug found on his person and in the Flat were the illicit drug of ‘Ice’ which he purchased from somebody. He said he used the metal spoon to scoop the drug. He earned about $25,000 a month as a mobile phone repairer. He had rented the Flat from 1 December 2021 onwards at $3,600 per month, and his girlfriend was unemployed.
Subsequent investigation revealed that his DNA was found on the black zipper pouch containing the four plastic bags of ‘Ice’ and the metal spoon.
By his plea of guilty, he now admits that on 26 April 2022 he possessed the dangerous drug carried upon him and found inside the Flat for the purpose of unlawful trafficking.
The defendant is now 35 years old. He was aged 33 at the time of the offences. He has two criminal convictions for the offence of possession of dangerous drug in 2012 and 2015 respectively. He has two convictions for the offence of possession of Part 1 poison. In 2015, he has one conviction for the offence of possession of an instrument fit and intended for the consumption of dangerous drug. In 2016, he was convicted of the offence of trafficking in dangerous drug on 12 January and he was sentenced to 8 years’ imprisonment. I understand from counsel that he was not discharged until May 2021, that was about one year before he committed the present offences.
He studied up to Form 3. At the material time he worked as a mobile phone repairing technician earning, according to counsel, about $18,000 per month. He claimed to be a drug addict for 14 years and he consumed ‘Ice’.
In mitigation, counsel Ms Vickie Ling submitted to this court a letter prepared by the defendant pleading for leniency, and also a letter prepared by his parents.
According to the letter prepared by the defendant himself, he said that at the material time, because of the COVID pandemic, he lost his job. Being unemployed, living the daily life, taking drug and also taking care of his son and his parents, he incurred a lot of expenses, so he committed the offences out of momentary foolishness in order to earn quick money and to subsidise his drug addiction.
According to the letter submitted by his parents, his parents stated that after the defendant had finished his studies and left school, all along they had given him money to help with his living expenses. After he was discharged from prison in 2021, before he could find a job and before he committed the present offences, they had regularly given him $20,000 a month from their own rental income.
So it would appear that at the material time, before he was arrested for the present offences, other than his own income from the mobile phone repairing business, he also obtained a $20,000 subsidy from his parents.
In mitigation, counsel informed this court that the defendant was separated from his wife in 2014, and they have a son who is now about 13 years of age. The son was diagnosed with Special Education Needs. He was usually taken care of by the separated wife or by the defendant’s parents, not by the defendant himself.
Counsel said that at the material time he had a monthly income of about $18,000 but it was not a steady income. Counsel confirmed that he also received a subsidy of $20,000 from his parents. It is my observation that the amount of money he earned, for somebody who only lived together with a girlfriend without contributing to his own parents’ family, indeed was quite a good amount of money compared to many other families. Not to mention that he had another $20,000 subsidy from his parents over all those years.
Counsel said at the material time, because his separated wife was in China, so his son’s emotional illness had become unstable, and that brought some stress onto him even though the son was not taken care of by him directly. Counsel said as a result he foolishly resorted to becoming more drug-dependent, and he committed the present offences.
Counsel also informed this court that he was an ‘Ice’ addict, but at the time when he was admitted to the Lai Chi Kok Reception Centre, the urine test confirmed that he was a consumer of both ‘Ice’ and ketamine.
Counsel submitted that he was not a high-rank senior player in the drug trafficking hierarchy, but counsel left for this court to decide what his role was, only submitting that he was not playing a high-ranking role in the hierarchy. Counsel said he was involved in the drug trafficking activity alone, and accepted that in respect of his criminal convictions for all those drug-related offences, his sentence could be enhanced for being a repeated offender. However, counsel urged this court to adopt a reasonable and proportional enhancement.
Counsel also urged this court to reduce his sentence because of his early plea of guilty and also that the claim that part of the drug seized was for his own self-consumption. I was informed by counsel that in respect of his claim for self-consumption, the defendant was not prepared to give evidence to support the claim, but instead he would rely on the urine test report prepared by the Correctional Services Department upon his admission to the Lai Chi Kok Reception Centre.
According to the urine test report submitted by counsel, the initial test upon his admission to Lai Chi Kok showed that he was positive for the drug of ‘Ice’. Then subsequent tests taken showed that he was positive for the drug of ‘Ice’ and ketamine.
Counsel said this court can also take into account the packaging of the drug found in this case, and to be satisfied that some part of the drug was used for his own self-consumption. However, when I asked counsel about the quantity of the drug that this court should accept as involved in his self-consumption, at first counsel did not quantify the amount, but later referred this court to the Summary of Facts that next to the pillow on the bed there was one transparent resealable plastic bag containing a tissue paper wrapping another transparent resealable plastic bag containing 4.61 grammes of a crystalline solid containing 4.57 grammes of methamphetamine hydrochloride. That is Exhibit 2 in this case.
Counsel submitted that Exhibit 2 indeed was the drug for his own consumption, and it was packed separately from the other packets of drug. Counsel submitted that he had even forgotten about the minute detail of the drug, and he did not remember this packet of drug until it was found by the police. Other than Exhibit 2, counsel did not rely on any other packets found in the Flat or on his person as that to be consumed for his own drug addiction.
In sentencing the defendant, I do bear in mind the principle enunciated by the Court of Appeal in the case of HKSAR v Wan Lau Mei [2014] 4 HKC 75 in respect of how to sentence two trafficking offences where different quantities of dangerous drug were found in the defendant’s possession on the same day but at different locations. The Court of Appeal stated that “the judge should regard the two offences as representing one occasion of possession of the total amount of drug and impose sentences on both offences for that total, making the sentences concurrent with one another. Such an approach more truly reflected the accused person’s culpability as the reality of the situation was that on the day of the charges the accused was in overall possession of the drugs found at the two locations. It was also an approach which ensured that the accused’s final sentence was not artificially inflated by separating out the drugs of the two charges …” This is the approach that I will follow in my sentencing of the defendant for both charges.
I also bear in mind the approach in respect of trafficking in dangerous drug sentences, stated 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.
The total quantity of the drug involved in this case is 77.97 grammes of ‘Ice’ narcotic. According to the guideline case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, to traffic between 70 grammes to 300 grammes of ‘Ice’ narcotic would result in a sentencing range between 11 to 15 years’ imprisonment. That is the starting point after trial. This case involved a total of 77.97 grammes of ‘Ice’ narcotic. So mathematically the starting point to be adopted after trial would be one of 11 years and 1 month’s imprisonment approximately.
I do bear in mind the role and culpability of the defendant when I consider the overall starting point in this case. I accept that his role was one of a courier and being a storekeeper, that is being at the lowest bottom of the trafficking hierarchy, because on the facts of the case he was leaving his own residence with some of the drug and the other drug was also stored at his home location.
According to the case of Herry Jane Yusuph, the mathematical calculation would be appropriate for persons such as couriers and storekeepers who are at the lowest bottom of the trafficking hierarchy. As such, bearing in mind his role and culpability, I will adopt 11 years and 1 month as the starting point after trial.
In respect of the background of the defendant, it is aggravated by the fact that he has a number of drug-related convictions. As I have previously stated, he was convicted of the offence of possession of dangerous drug on a total of two previous occasions. And he was also convicted of the possession of equipment fit and intended for smoking drugs on one occasion.
More significantly, in 2016 he was convicted of trafficking in dangerous drug and was sentenced to 8 years’ imprisonment. He was not discharged from prison until about May 2021. That was less than one year before he committed the present offences. I also understand from counsel that the drug concerned in respect of his 2016 conviction was that of ‘Ice’, that is the same kind of drug as involved in the present case.
So it shows that all the previous sentences did not actually deter him to stay away from drugs. Instead, the offence he committed has become more and more serious, from possession of dangerous drug to trafficking in dangerous drug. Even shortly after he was discharged from prison he engaged in the trafficking of the same kind of drug again. For that reason, I consider it to be an aggravating feature and I will enhance his starting point by 2 months for that matter. So the notional sentence to be adopted after trial should be one of 11 years and 3 months’ imprisonment.
I shall now come to his assertion of self-consumption. The guiding principles 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 HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 include : the quantity of the drug involved and its value, the general circumstances including how the drug is wrapped and how many packets or wraps are there, where the drug has been found, the presence of any packaging paraphernalia associated with the drug including items for packaging, weighing and diluting of the drug and items for the consumption of the drug, whether the defendant is an addict, any explanation given by him following the arrest, his general means, his ability to pay for the drug and otherwise by trafficking, his criminal record in respect of previous convictions for drug offences.
Usually, a court will be able to determine the issue from all those factors without a Newton hearing. It needs to be borne in mind that even possession of the drug for self-consumption itself carries a term of imprisonment with possible enhancement for the latent risk that the drug will be accessed by or distributed to others.
I also bear in mind the principles stated in the case of HKSAR v 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 traffickers’ 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 drug was 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.
In any event, a sentencing court has a discretion to discount a sentence to reflect an element of self-consumption. It is fundamental that the claim of self-consumption needs to be established to the court’s accepted threshold, that is, the court has to be satisfied that a significant proportion of the drug was for his own consumption before any further discount is granted.
In the present case, the defendant declined to give evidence or go to the box to support his assertion that a significant proportion or a proportion of the drug was for his own proportion consumption. But even in counsel’s own submission, it was said only Exhibit 2 was to be considered as the portion of drug for his own consumption. In respect of the whole quantity of the drug found on his person and inside the Flat, that would amount to only about 5 per cent of the total quantity of the drug, which I do not consider amounts to any significant proportion of the drug found.
Of course, on the urine test report, I am satisfied that he was also a drug addict at the material time. But that does not necessarily mean that a significant portion of the drug seized was for his own consumption.
I also bear in mind that in respect of Exhibit 2 which counsel claimed was for his own consumption, it was a plastic bag of drug wrapped inside a piece of tissue paper. This kind of wrapping was totally different from all the other bags of dangerous drugs.
In particular, I bear in mind the fact that when he was intercepted by police at the time he left the Flat, he carried the four plastic bags of ‘Ice’ particularised in Charge 1 on his person. That amounts to almost half or more than half of the drug concerned in this case. So he was carrying the bulk of the drug outside the premises. Counsel did inform me that he did not consume the drug outside his own flat. He consumed the drug on his bed in his own flat, and that was why Exhibit 2 was found next to a pillow on the bed.
I bear in mind the fact that in respect of the other four plastic bags of ‘Ice’, that is Exhibit 5, the concentration was found to be 28.4 grammes of a crystalline solid containing 28.4 grammes of methamphetamine hydrochloride. That means 100 per cent. It was not diluted at all by any means, unlike all the other packets of drug found on his person and in the Flat.
At the same time, I also bear in mind the fact that a large quantity (amounting to 184) empty transparent resealable plastic bags were found in his flat. Counsel submitted that some of the bags were being used in his mobile phone repairing business to contain small parts like screws. I do not accept that submission because all those plastic bags were empty at the time when they were found. I consider that they were part of the packaging paraphernalia together with the digital scale and the metal spoon found inside the Flat.
Taking into account all those matters as well as the quantity of the drug, the retail value of $47,000-odd and all the circumstances, I am not satisfied that a significant portion of the drug seized on that day was being used for his own self-consumption. As a result, I decline to give him any further discount for that matter.
The defendant pleaded guilty at an early stage and he is entitled to the full one-third discount because of that early plea. So from the starting point of 11 years and 3 months’ imprisonment, he is sentenced to a total of 7½ years’ imprisonment after the one-third discount for his guilty plea.
Bearing in mind the principles stated in the case of Wan Lau Mei, I impose 7½ years as the sentence for each of Charge 1 and Charge 2, and I direct that the sentences in both charges to be served concurrently.
So the ultimate sentence is also one of 7½ years’ imprisonment.