The facts of the case may be summarised as follows. As the defendant failed to check out from a hotel as scheduled, the hotel manager entered the room and found a bag containing 22 identity cards in question. Packages of suspected dangerous drugs were also found. A report to the police was made. One day later, the defendant was spotted inside the hotel lobby. Officers approached him and arrested him.
Under caution, the defendant admitted that he brought the dangerous drugs to the hotel room and someone had given him the identity cards earlier. In a subsequent video-recorded interview, he made similar admissions. He further admitted to have bought the drugs and intended to resell the ‘Ice’ at the price of $700 per gramme. He had also bought the identity cards at a price of $50 each and was to resell them at a price of $100 each. He also admitted that he was addicted to ‘Ice’ and cannabis. The smoking paraphernalia inside the hotel room were used for smoking ‘Ice’.
All of the identity cards found were eventually sent for examination and found to be genuine, but two of them had signs of being tampered with.
I was told that the defendant is single, 38 years of age. He was educated up to Form 3. He had worked as a courier and was unemployed at the time of the offence. The defendant is not a first-time offender, but he has never committed similar offences before. The first conviction dated back to the year 2000, it was for the offence of AOABH. The other convictions were related to one case of copyright offence, one case of blackmail, one case of theft, one case relating to handling stolen goods and one case of gambling.
Learned counsel for the defence, Mr Lo, stressed that the defendant pleaded guilty at the earliest opportunity. Mr Lo also urged the court to accept that a proportion of the ‘Ice’ was intended for the defendant’s own consumption. In this regard, whilst the defendant elected not to testify, the positive result to methamphetamine of a test of his urine conducted three days after his arrest was adduced to support the assertion. Whilst accepting that a proportion of the alleged purpose cannot be regarded as a significant proportion, Mr Lo asked the court to exercise discretion to reduce the sentence.
In relation to the identity cards offence, Mr Lo stressed the followings. One, there is no evidence as to when, where and how the owners of the identity cards had lost their cards. Two, there is no evidence to suggest that the defendant had himself stolen the identity cards. And three, there is no evidence to prove that the defendant intended to use the identity cards to obtain employment and in any case he did not need one as he is a Hong Kong resident.
In the present case, the defendant trafficked in two types of drug, namely ‘Ice’ and cannabis. ‘Ice’ was obviously the prominent drug, both in terms of its harm and quantity. There were about 27.78 grammes of ‘Ice’. According to the case of HKSAR v Tam Yi Chun, CACC 524/2011, a sentence of 7 to 11 years’ imprisonment should be considered if the narcotic content is between 10 and 70 grammes. For the quantity of ‘Ice’ the defendant trafficked in, a starting point of 8 years and 2 months is called for.
There were also 23.8 grammes of herbal cannabis. The effect on sentence of this additional quantity of cannabis is by itself not very significant, but trafficking in two different types of drugs amounts to an aggravating feature.
Having regard to the whole of the circumstances, including the aggravating feature and the result of calculation adopting the various established tests, in my judgment the starting point should be enhanced by 1 month, which will be 8 years and 3 months.
The defendant claimed part of the drug was for self-consumption. In connection with the assertion of self-consumption, I have had regard to the Court of Appeal cases of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, and HKSAR v Tam Ling Yuen, CACC 159/2015. Taking into account the test result and finding of drug-consumption paraphernalia, I am prepared to consider the matter on the basis that the defendant is a drug abuser. However, there is insufficient basis on me to find that a substantial proportion of the dangerous drug in the defendant’s possession was for his own consumption.
At the same time, I also take into account that the offence of possession of dangerous drug itself carries a custodial sentence. As regards to latent risk, in the present case, my assessment is that it was quite substantial. In all the circumstances, I adopt a notional starting point after trial of 8 years for Charge 1, the charge relating to trafficking in dangerous drugs.
Charge 2 relates to possession of 22 identity cards relating to another persons. The purpose of such possession was undoubtedly for profit. In case the identity cards come to the hands of people who are not entitled to have the documents, there will be an impact on immigration enforcement and employment market. Having had regard to the case like HKSAR v Li Chang Li [2004-2005] HKCLRT 193 and HKSAR v Fan King Lam, CACC 220/2010, everything said on behalf of defendant, the number of cards in the possession of the defendant, I adopt a starting point of 21 months.
The defendant pleaded guilty to the offences before a magistrate and is therefore entitled to a one-third discount for each charge. Having considered the whole circumstances, including mitigation submission, I am of the view that this is the extent of discount the defendant is entitled to.
For the reasons I have just mentioned, I sentence you as follows. Charge 1, 5 years and 4 months’ imprisonment. Charge 2, 14 months’ imprisonment.
You committed two offences of completely different nature at the same time. Having considered the principles stated in the case of HKSAR v Ngai Yiu Ching, CACC 107/2011, and the totality principle, in my judgment, the two sentences should run consecutively but not wholly. In all the circumstances, having regard to the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, I order 8 months for the sentence for Charge 2 to run consecutively to that of Charge 1.
You are to serve a total sentence of 6 years for the two charges.