CRIMINAL CASE NO. 266 OF 2010
COURT: The defendant has pleaded guilty to one count of trafficking in a dangerous drug, namely, 59.53 grammes of a solid containing 48.50 grammes of cocaine. He has also pleaded guilty to one count of possession of a dangerous drug, namely, 0.51 grammes of a solid containing 0.45 grammes of cocaine.
The facts, which have been admitted, show that on the material day, at about 3 pm, police officers were carrying out an operation on the 13th Floor, of the San Diego Hotel, in Yau Ma Tei. When the door to room 132 was opened, police rushed inside and saw the defendant sitting on a bed whilst a female was sitting in a chair by the side of the bed. Upon seeing the police, the defendant rushed towards the door. He put up resistance, but, eventually he was subdued by the police.
On top of a tea cabinet, two bottles fit for inhaling cocaine and two plastic bags containing a small amount of cocaine were found. The drugs found on top of this tea cabinet are the subject matter of the 2nd count.
Upon caution and arrest the defendant said that those drugs are for his own consumption and that the two pots for inhaling cocaine were used by him. Upon a search of the defendant’s person, from the right front shirt pocket of the defendant, was found a plastic bag containing three packets of cocaine, which are the subject matter of the 1st count. Under caution the defendant said those drugs were also for his own consumption.
From the defendant’s handbag were found cash of about $18,988 and 200 Renminbi.
The facts also disclose that the estimated retail value of the drugs found were in the region of about HK$53,696.
In mitigation, the defendant is said to have been a construction worker or a decoration worker and he, after leaving prison, found himself a job and earned in the region of $10,000 a month.
The defendant has two previous convictions; none similar. His last conviction was in 2004 for possession of arms and ammunition for which he was sentenced to 8 years’ imprisonment. He was discharged from prison on 6 February 2009.
I am told by Mr Chan, in mitigation, that the defendant, because of an argument with his girlfriend, had then started taking drugs about five months prior to his arrest. Mr Chan submitted that 10 grammes out of the amount in Count 1 were actually for the defendant’s own consumption. The prosecution does not dispute that a small proportion of the amount in the 1st count is for the defendant’s self-consumption.
Mr Chan, on behalf of the defendant, submitted the case of HKSAR v Wong Suet Hau & Anor, which is reported in [2002] 1 HKLRD 69. The Court of Appeal recognised that in trafficking in dangerous drugs, in mitigation, some defendants often suggest that a portion of the drugs is for self-consumption. The Court of Appeal thus addressed this matter and from the headnote, paragraph 2, the Court of Appeal said that:
“The judge in the case should consider the following factors when determining mitigation that part of the drugs were for the defendant’s own consumption and that can be determined without a Newton Hearing.”
The Court of Appeal listed out eight matters for consideration:
(1) The court has to consider the quantity and value of the drugs.
(2) The general circumstances including how the drugs were wrapped and how many packets were found;
(3) where the drugs had been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;
(4) the presence of packaging material and, on the other hand, items used for consumption;
(5) whether the defendant was an addict or habitual user;
(6) the explanation given by the defendant following arrest;
(7) the defendant’s general means and his ability to pay for his drugs otherwise than by trafficking in them;
(8) the defendant’s criminal record in relation to previous drug offences.
Now, in this case, as I have mentioned earlier, the drugs were found wrapped in two separate plastic bags and were found on the person of the defendant. I am told by Mr Chan, on behalf of the defendant, that the room in which the defendant was found was, in fact, rented by the supplier of the drugs. This does not seem to be disputed by the prosecution. There were no packaging materials, only the bottles which were fit for consuming cocaine.
So overall, having considered all these matters, I am satisfied that part of the drugs in Count 1 were, indeed, for the defendant’s self-consumption. Mr Chan, on behalf of the defendant, submitted that 10 grammes out of the 59.53 grammes were for the defendant’s own consumption and that seems like a reasonable amount in the circumstances.
The next thing I have to consider is the range of sentencing for cocaine. In the case of Pedro Nel Rojas it was said by the Court of Appeal that the sentencing for cocaine should follow the guidelines laid down for heroin and, thus, the guidelines laid down in Lau Tak Ming would apply. In Lau Tak Ming, as Mr Chan correctly pointed out, it is suggested that for trafficking in between 10 to 50 grammes of heroin a sentence of 5 to 8 years is recommended.
Now, in this case, in the 1st count, I have accepted that 10 grammes of the amount was for the defendant’s own consumption. So the amount which he would be sentenced for, for trafficking, would be in the region of about 49.53 grammes containing about 38.5 grammes of cocaine.
So having considered all this, I consider a starting point of 7 years’ imprisonment would be appropriate for Count 1. Because of the defendant’s plea, he is entitled to one‑third discount and, therefore, the sentence would be reduced to 56 months.
Now, in relation to the 2nd count, it is only a possession of 0.51 grammes containing 0.45 grammes of cocaine. I consider that an appropriate starting point, taking into account all the circumstances, would be one of 18 months’ imprisonment. Then deducting the usual one-third will leave a sentence of 12 months’ imprisonment.
I have to consider the totality principle and I agree with Mr Chan that both sentences should be served concurrently. The defendant will go to prison for 56 months.