COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug, namely, 26.6 grammes of a crystalline solid containing 26 grammes of methamphetamine hydrochloride, which I will refer to as ‘Ice’ for short.
At about 5.55 pm on 25 August 2022, the defendant was walking from the lift lobby towards a flat on the 27th Floor of Lok Wong House, Tsz Lok Estate, Wong Tai Sin, I will refer to that as “the flat”. The police officers intercepted the defendant and conducted a body search on the defendant.
In the defendant’s left trouser pocket, the police found the following:
(1) a piece of tissue paper wrapping around one transparent resealable plastic bag containing 13.3 grammes of a crystalline solid containing 13.1 grammes of ‘Ice’;
(2) with that tissue paper, another tissue paper wrapping around another transparent resealable plastic bag containing 13.3 grammes of a crystalline solid containing 12.9 grammes of ‘Ice’; and
(3) 15 empty resealable plastic bags.
The police also found on the defendant $600 of cash, one mobile phone with one SIM card and some keys.
The estimated street value of the ‘Ice’ seized in the present case is $15,641.
The defendant was then arrested, and under caution, the defendant said that the ‘Ice’ found on him was for his own consumption and asked the police for a chance.
The police escorted the defendant to the flat. The defendant’s girlfriend was then in the flat. The police conducted a house search and found nothing illicit or suspicious.
Background and Mitigation
The defendant was 48 years old at the date of the offence and is now 50 years old. The defendant finished education up to Form 2. The defendant has two sons who are now 25 and 18 years old. At the time of the arrest, the defendant lived with his sons and his girlfriend. Prior to the arrest, the defendant used to work as a transportation worker, earning $8,000 to $9,000 a month.
Amongst other conviction records, the defendant had three convictions for possession of dangerous drugs in the past, and five convictions of possession of Part I poisons. The defendant was sentenced twice to the Drug Addiction Treatment Centre in 2004 and 2008. The latest record was a possession of dangerous drug offence, for which the defendant was sentenced in 2022 December. This is the first time that the defendant has been charged with trafficking in dangerous drugs.
In mitigation, the defendant had pleaded guilty at the first earliest opportunity, and is genuinely remorseful. The defendant also invited the court to consider that he has managed to quit his addiction to drugs during his time in jail custody, and is determined to find a new job after release. I have also received this morning additional letters from the defendant’s mother and the defendant’s sons. I have taken their contents into account.
Considerations of Sentence
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1
HKLRD 290 and HKSAR v Lee Ming Ho [2024] HKCA 150. I therefore follow the six-step sentencing approach set out in Yusuph.
The first step is to identify the relevant guideline band or bracket applicable to the quantity of drug concerned. The sentencing tariffs for trafficking in ‘Ice’ are provided for in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For quantities of 10 grammes to 70 grammes, the sentencing band is 7 to 11 years’ imprisonment. The mathematically calculated starting point in this case for 26 grammes of ‘Ice’ would be 8 years’ imprisonment.
On the evidence, there is nothing to suggest that the defendant had any further role beyond the culpability of an ordinary courier. I therefore assess his culpability on that basis. I do not see any basis for departing from the mathematically calculated starting point.
The main mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount off the starting point, which brings the sentence down to 5 years and 4 months’ imprisonment after rounding down.
The defence invited this court to consider that a small proportion of ‘Ice’ found in possession of the defendant was for his own use. In respect of the defendant’s claim of self-consumption, where the court is satisfied that only part of the drugs were for self-consumption rather than a significant part, the court still has a discretion to decide whether the defendant should be given any reduction in sentence for that reason and the extent of it, according to the individual circumstances of each case - See HKSAR v Kong Tat Lung [2017] 6 HKC 448 at paragraphs 58 and 59.
I have been provided with a urine test report in respect of the defendant’s sample, which was collected on 28 August 2022, 3 days after his arrest, which showed that the defendant was tested positive for a number of drugs, including amphetamine. It is also evident, from the defendant’s previous criminal record, that he is a hardened drug addicted who has been addicted to drugs for a lengthy period of time. In those circumstances, I am prepared to proceed on a basis that a small proportion of the ‘Ice’ in the present case was for the defendant’s own consumption. The prosecution does not object to this approach.
I am prepared to afford the defendant a further 3 months’ reduction in the sentence to reflect this factor.
Defendant, I sentence you to a term of 5 years and 1 month’s imprisonment.