The Facts.
The defendant pleaded guilty in the Eastern Magistrates’ Court to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. She was committed to this court for sentence. This morning, the defendant confirmed her plea and her acceptance of the Summary of Facts.
Briefly, the defendant was stopped and searched by Customs Officers on 10 May 2012 when she entered Hong Kong from the Mainland and when passing through the Green Channel of the Lok Ma Chau Control Point. As a result of the search, two plastic bags containing 0.13 kilograms of methamphetamine hydrochloride, commonly known as “Ice”, was found hidden inside the bra which the defendant was wearing. When asked, the defendant replied that those were “Ice”.
The drug had an estimated street value of about HK$98,000.
Mitigation. The defendant is aged 26, divorced, and was born in Hong Kong. She received education up to lower secondary level and was unemployed at the time of her arrest. The defendant has had one spent conviction, that is, possession of a dangerous drug, and she was fined on that occasion. The defendant stated that since the age of 19, she had been abusing “Ice” and cocaine.
This morning, Mr Suen, who acted for the defendant, submitted to the court a letter which was written by the defendant. The defendant expressed remorse in the letter and mentioned that she was brought up in a single parent family, therefore, she lacked parental guidance when she was young and she ended up committing the offences.
In mitigation, it was said that the defendant only committed this offence as she was promised a reward of HK$4,000 to HK$5,000 upon successful delivery of the drugs. Mr Suen supplemented that although the defendant was not employed at all at the time of the offence, she worked in a nightclub on a casual basis prior to that, earning about HK$8,000 to HK$10,000 per month.
Mr Suen told the court that some of the drug which the defendant carried was for her own consumption. When asked by the court what the arrangement was, that is, whether the defendant was promised a certain amount of the drug as reward on top of the monetary reward of HK$4,000 to HK$5,000, Mr Suen confirmed that it was so. When asked what the amount agreed upon was, Mr Suen initially said that it was about one-quarter, but when the court pointed out that such an amount according to the Summary of Facts would represent about HK$25,000 worth of drug sold at street level, Mr Suen informed the court that there was no fixed amount agreed upon as the reward for this defendant.
The Sentence. The tariffs for trafficking in “Ice” were laid down in Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 and corrected in HKSAR v Capitania, CACC 28/2004, 11 August 2004 (unreported). For trafficking between 70 and 300 grammes of “Ice”, a term of 10 to 14 years’ imprisonment is called for.
Having considered the amount of “Ice” involved and the facts of this case, I am going to adopt an initial starting point of 11 years. However, as the defendant had brought the “Ice” into Hong Kong, I would make an upward adjustment of 6 months to reflect this international dimension. Further, the defendant committed this offence whilst on bail for a fraud incident for which she was arrested on 4 December 2011. I will further increase the starting point by 3 months. Thus, with these upward adjustments, the starting point is one of 11 years and 9 months.
The defendant pleaded guilty and she will receive a one-third reduction for that.
Although the defendant claimed that part of the drug was for her own self-consumption, I reject the claim outright for the following reasons:
1. According to the Summary of Facts, the defendant was found carrying the two large bags of drug inside her bra when returning to Hong Kong from the Mainland. When asked at the scene, she confirmed that those were “Ice”. She later claimed in the subsequent interview that she had bought the “Ice” from someone in the Mainland but she had not paid for the drug. She also told the officer that the drug was for her own self-consumption and that the “Ice” would last for 2 to 3 weeks.
This morning, through her counsel, the defendant now admitted that she agreed to bring the drug into Hong Kong for a monetary reward. However, the defendant claimed that on top of the financial reward, part of the drug would be given to her for consumption.
As mentioned above, the defendant was unable to say how much that was which would be given to her for consumption. If there was any deal as such, I do not believe that no amount had been specified. Further, it is entirely not credible that the defendant would be given about HK$25,000 worth of drug on top of her financial gain as reward for being a courier.
2. In any event, according to the defendant, one-quarter of the drug, that is about 30 grammes of “Ice”, was for her own consumption, and that is a large quantity. As pointed out in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, the Court of Appeal said:
“The judge should keep well in mind,
(1) The fact that possession of dangerous drugs itself carries a term of imprisonment.
(2) The requirement to enhance sentence for simple possession of drugs to reflect where appropriate the latent risk factor (see HKSAR v Mok Cho Tik [2001] 1 HKC 261) which takes into account the risk that some of the drugs intended for self-consumption may nevertheless find their way into the hands of others.
(3) An application of considerations (1) and (2) may well offset much of the practical value of the mitigation, particularly with certain dangerous drugs which are commonly used amongst friends at social functions including “Ice”.”
As I have said, I do not accept at all the defendant’s assertion of having part of the drug for her own consumption. In this case, other than the defendant’s plea, there is nothing which would warrant any further reduction in sentence. The defendant is therefore to serve a term of 94 months’ imprisonment for this offence.