The accused faced two counts of trafficking in a dangerous drug. He pleaded not guilty to both. Last Friday, the jury unanimously acquitted the accused of Count 1 and also of the alternative offence of simple possession.
By a majority of five to two, they convicted the accused of Count 2. Count 2 concerns a total of 513.75 grammes of a crystalline solid containing 315.67 grammes of methamphetamine hydrochloride and 44 tablets containing 0.56 gramme of midazolam.
At trial, it was not disputed that the drugs in Count 2 were seized from a locked bedroom on the first floor of the accused’s home premises. Also found inside the room was some packaging paraphernalia like sealing device, empty resealable plastic bags and electronic scales.
The defence case was that the room had been rented to the accused’s friend although the accused had kept a spare key to that room which the accused’s said was used by the police to unlock the room. Clearly, by the verdict of the jury, they had rejected the accused’s claim and were sure that the drugs inside the room were in the possession of and under the control of the accused for the purpose of trafficking, instead of something belonging to the purported tenant, Wah Chai, or Chan Yuk-wa.
The Accused’s Personal Background and Mitigation
The accused is now aged 45 and was born in Hong Kong. He was educated up to Form 1 level. He had been a transportation worker prior to his arrest. In total, the accused has got 44 previous criminal convictions. 10 of those are drug-related offences with one trafficking in a dangerous drug conviction in respect of which he was sentenced in February 2015 to 4 years and 8 months’ imprisonment.
This morning, Mr Cheung frankly acknowledged that there is not much that he could say on behalf of the accused in terms of mitigation, save that he reminded the court that on the last occasion, all the dangerous drugs were particularized in one count whereas in this trial, the accused was acquitted of Count 1 and only convicted of Count 2.
Tariffs
The revised tariffs for trafficking in ‘Ice’ were laid down in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For trafficking between 300 and 600 grammes of ‘Ice’, the term is one of 15 to 20 years’ imprisonment. Although midazolam was also involved in this count, given the negligible amount, I am going to ignore it for sentencing purpose.
Sentencing in this Case
Having considered the amount of ‘Ice’ involved and the facts of this case, I am going to adopt a starting point of 15 years and 3 months. I note that when the accused was last convicted, he was sentenced by DHCJ Lugar-Mawson to 16 years’ imprisonment. However, that was the sentence passed in respect of all the dangerous drugs said to have been involved in the case. Since the accused has now been acquitted of the Count 1 offence, the previous sentence imposed is not of direct relevance now.
Further, although the accused has got a previous trafficking in a dangerous drug conviction, I note that it relates to an offence which happened some ten years before the present offence. Therefore, having considered all the relevant circumstances, I do not consider it necessary to enhance this sentence because of that record.
The accused was convicted after trial. He is therefore not entitled to the reduction associated with a guilty plea. In this case, there is nothing which would warrant any reduction in sentence. I therefore order that the accused be sentenced to a term of 15 years and 3 months.
I should also mention this. In the course of the trial, prosecuting counsel made an application to cross-examine the accused regarding his previous criminal convictions. The application was opposed by Mr Cheung for the accused. After hearing counsel’s submissions and considering the relevant authorities, I ruled that the prosecution could cross-examine the accused’s record, save and except those in relation to his drug offences.
At that time, I indicated that I would give the reasons of my ruling in writing in due course. However, the prosecution later withdrew their application and no cross-examination of the accused’s record was conducted.
In view of this development, I do not now consider it necessary to give written reasons for my ruling. It suffices for me to say that I arrived at that conclusion or that ruling based on the principle of fair trial.