COURT: The defendant was charged with one count of trafficking in dangerous drugs, namely, 36.79 grammes of a mixture containing 12.86 grammes of heroin hydrochloride, 12.23 grammes of a crystalline solid containing 11.36 grammes of methamphetamine hydrochloride and 0.69 gramme of a solid containing 0.52 gramme of cocaine. The defendant was committed to the High Court for trial on 16 November 2020 and subsequent to that, the court was informed that he intended to plead guilty and therefore his case was set down for a plea and sentence before myself.
As far as the Summary of Facts which was admitted by the defendant is concerned, he was seen by police officers after 12 noon walking towards where he lived, 32 Bedford Road in Tai Kok Tsui. A key was found on him and during the house search conducted in his room, the drugs which is the subject matter of the charge were discovered. He was cautioned and arrested and the defendant told the police that all the drugs were for his own consumption. It was found on his person four mobile telephones and cash of $2,400.
In a subsequent video-recorded interview, the defendant said he rented the room in August 2019 and that he was retired and he had applied for CSSA half a year ago. He knew the nature of the drugs seized in the room and he consumed them to treat his stomach ache and he would consume drugs two to three times a day, consuming one gramme each time.
The total street value of the drugs seized was about HK$37,955.
Now, after plea, I was informed that a Newton hearing was required as the defendant said that the ‘Ice’ were for his own consumption.
The defendant’s antecedents were submitted to the court and he also submitted was his criminal record. He has had in the past, convictions for robbery and offences against dangerous drugs. He disputed the last conviction in 1999 for which he was sentenced to 13 years for trafficking in DD. The matter was adjourned for the prosecution to look into the records and to supply the records to the defence in relation to his past convictions, both with the record’s office and things like the case memorandum made by the prosecuting counsel.
There is no doubt that the fingerprints, as Mr Iu had conceded, matched those of the defendant. However, Mr Iu said the defendant still insisted that he was not the person convicted of trafficking in DD in 1999 for which he was sentenced to 13 years. As I had indicated, I can only accept the records prima facially as shown to this court. I cannot see any reason existing for doubting the accuracy of the record.
However, even if I should ignore that last conviction, the defendant had still committed many cases involving dangerous drugs including one for conspiracy to manufacture in 1984 for which he was sentenced to 10 years’ imprisonment. So in effect, it is not his first time in court in relation to drug offences.
Now, going back to the issues in this case, the defendant went to the witness box to give evidence and his evidence is that he was working in various restaurants until about 2005 when he became a casual worker as a lift cleaner in the airport station. And then, he stopped working and claimed CSSA of about $2,000 plus a month from 2017 after he was diagnosed with diabetes until the time he was arrested. He said he would spend about $15,000 approximately a month on drugs. He used to pay rent of about $5,000 a month but at the place of his arrest, he paid rent of $6,000 a month. He claimed that when he was receiving CSSA, he did not have any jobs but would occasionally help friends out.
When questioned about why he had cash of $190,000 kept in a suitcase in the top bunk of his bed, he claimed that they were his savings. Yet, when giving evidence he revealed that he used to have an HSBC account and he subsequently terminated that account and opened a Hang Seng Bank account. When he was asked why he did not put the money in the bank account, he claimed that it was too troublesome to go to the bank when he needed money as he was old.
He says that the drugs which was found, that is the ‘Ice’, was actually remnants from a year ago before his arrest of the drugs he used to take, that is the leftovers, the remnants from the packets of drugs he had. However, it was put to him that the purity of the drugs was very high and unlikely to be remnants.
Now, it was also put to him that on his account of his work history and his earnings that it would be unlikely that he would have been able to save $190,000 in cash and support his drug habit and pay rent. He said that that was all his savings from 20 years of work. He disputed that the ‘Ice’ was found in two packets and claimed that it was the police who put the five to six packets originally there into two packets although he had admitted in the facts read out to him that the ‘Ice’ was found in two packets.
It is clear from the photographs which I was shown when the police entered the premises that the drugs were openly displayed on a table beside two scales. There were also many empty plastic resealable plastic bags on that table.
And one very strange matter was also brought up was that the defendant claimed that he had someone staying with him, an old friend, staying with him every once in a while and yet he had so much cash in his top bunk bed unlocked in a suitcase.
So all in all with what he said, I do not accept the defendant as a credible witness at all. Although, as I had told Mr Iu, I accept that he may take some of the drugs for himself as far as temptation goes but I do not accept that he had all the drugs, that is the ‘Ice’, for his own consumption. I do not accept that a significant amount of the drugs found were for his own consumption either. I would accept that a small part he may take for himself.
I am grateful to the calculations made in relation to the quantity of drugs and the range of sentences that I can adopt made by Mr Chan.
Now, we all know that when several different types of drugs are found that the court can convert them into one type of drug and sentence accordingly. In this case, the heroin and cocaine will follow the Lau Tak Ming guidelines and as far as the ‘Ice’ is concerned, it is of a lesser quantity than the heroin and cocaine put together so I would convert the ‘Ice’ into heroin and cocaine and making a total of 24.74 grammes and that would give us roughly a starting point sentence of 7½ to 8 years.
Now, I consider that the criminal record of the defendant shows that he is not unfamiliar to drug offences and he had serious offences including conspiracy to manufacture previously and trafficking in dangerous drugs. So having considered all that, I will adopt a starting point of 8 years.
He pleaded not guilty at the earliest opportunity but he did indicate his plea after committal to the High Court for trial. So I would say that he is entitled to a 22 per cent discount and I consider that overall the amount of drugs that he may take for his own consumption would merit about a reduction of 8 per cent, so in all a discount of 30 per cent will be given to him and therefore I will reduce the 8 years by 30 per cent, thus giving a sentence of 5 years and 7 months.