COURT: The defendant faces one count of trafficking in dangerous drugs. She indicated her plea of guilty at the pre-trail review. She was formally convicted on the original first day of trial.
Particulars of the charge are that the defendant, on 28 January 2015, at Room 4, Flat 4, 2nd Floor, of Cheung Ming Building, in Sham Shui Po, unlawfully trafficked in the following assortment of dangerous drugs: 430.89 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’; 0.92 grammes of cannabis in herbal form; 0.06 gramme of a plant material containing traces of tetrahydrocannabinol, being a tetrahydro derivative of cannabinol and cocaine; 3.71 grammes of cannabis resin; 0.01 gramme of midazolam, 54 tablets containing 0.73 gramme of midazolam; 0.03 gramme of a powder containing cocaine, 11.03 grammes of heroin hydrochloride and 60 tablets containing 0.6 gramme of nimetazepam.
The total weight of all of the above narcotics is 447.98 grammes.
The facts are as the defendant admitted to in court. In short, she was intercepted after boarding a taxi. When she was apprehended, a packet was dropped by her. Inside the packet were some suspected drugs. She was then brought to her residence where further suspected drugs were found.
Previous convictions
The defendant has a total of 23 convictions from 18 court appearances. Of those 23, 15 were for the possession of dangerous drugs, three were for trafficking in dangerous drugs. Her last conviction was in December 2013, when she was sentenced to 10 months’ imprisonment at the Kowloon City Magistracy for one charge of possession of a dangerous drug. She was last released from jail on 14 March 2014.
The defendant is 46 years old. Her mother had passed away and her partner had committed suicide while the defendant was on remand. The defendant wrote in a letter to the court that she had found faith in her religion and indicated that she has applied to become an organ donor.
Mr Whitehouse submitted that the defendant is an ‘Ice’ addict and that some of the drugs seized were for her self-consumption. Mr Whitehouse was of the view that there should not be a Newton inquiry, saying that it would be impossible for the defendant to tell the court how much exactly of the drugs were for her self-consumption.
Sentencing guidelines
Guidelines for trafficking in ‘Ice’ are laid down in the case of HKSAR v Tam Yi Chun. The applicable band of tariff for trafficking between 300 and 600 grammes of ‘Ice’ is that of 15 to 20 years’ imprisonment.
According to the case of The Queen v Lau Tak Ming, the applicable band of tariff for trafficking between 10 and 50 grammes of heroin hydrochloride is that of 5 to 8 years’ imprisonment. The Lau Tak Ming tariffs also apply to trafficking in cocaine. For trafficking of up to 10 grammes of cocaine, the applicable band of sentence is that of 2 to 5 years’ imprisonment.
The sentencing guidelines for trafficking in cannabis resin are found in the case of The Queen v Chan Chi Man as recast in Attorney General v Tuen Shui Ming. The sentencing range for trafficking under 2,000 grammes of cannabis resin is up to 16 months’ imprisonment.
Sentence
First of all, I will adopt the combined approach when sentencing the defendant for the assortment of drugs involved - see the case of HKSAR v Yip Wai Yin. The bulk of the narcotic substances is made up of ‘Ice’, being 96.19 per cent. The nearest substance to compete with the ‘Ice’ is the 11.03 grammes of heroin hydrochloride, being 0.025 per cent. The other potent narcotic is the 0.03 gramme of powder containing cocaine which makes up 0.0067 per cent of the total weight.
An arithmetic application of the relevant guideline sentences would lead to a starting point of 206 months’ imprisonment for the ‘Ice’, 61 months for the heroin, 24 months for the cocaine and less than a few weeks’ imprisonment for the cannabis resin. I find that even if the remainder of the narcotic substances are taken into consideration, the sentences they each attract will pale into insignificance alongside the sentences for the ‘Ice’ and heroin. As such, I will ignore those substances when deciding on the sentence. I adopt a starting point of 207 months’ imprisonment.
The conversion test is then applied to this starting point. As mentioned above, 11.03 grammes of heroin attracts a sentence of 61 months’ imprisonment which is the equivalent sentence for 5.3 grammes of ‘Ice’. If this 5.3 grammes of ‘Ice’ is added to the 430.89 grammes of ‘Ice’, the sentence for this 436.19 grammes of ‘Ice’ would be 207 months which is one month more than the applicable sentence for 430.89 grammes of ‘Ice’.
The lowest band of sentence for trafficking in ‘Ice’ in Tam Yi Chun is that of 3 to 7 years’ imprisonment for up to 10 grammes of narcotics. By implication, the quantity of ‘Ice’ that would attract a sentence of 2 years would be small. Again, adding this small quantity to the original 430.89 grammes of ‘Ice’ would not have any material impact on the sentence. I find that 207 months is an appropriate starting point for the charge and I do so adopt 207 months.
Aggravating factors
Trafficking in a variety of drugs is an aggravating factor and would warrant an enhancement of sentence, as in the case of HKSAR v Wan Lau Mei. I find, however, that the enhancement should reflect the fact that the bulk of the trafficked drugs was made up of ‘Ice’ which was not the case in Wan Lau Mei where the assortment of 'Ice', heroin, cocaine and ketamine were each of a much higher proportion. I find that the sentence should be enhanced by 3 months’ imprisonment for this particular aggravating factor.
The defendant is a persistent offender and this is her fourth conviction for trafficking in a dangerous drug. The previous convictions were all dealt with in the magistracy and she was sentenced to 16 months’ imprisonment on each occasion. Her last conviction for trafficking was some five years ago. Be that as it may, I do find that there is a need to enhance the sentence to add to the deterrent effect as well as to protect the general public from the defendant as a persistent offender. For this aggravating factor, I enhance the sentence by 3 months’ imprisonment.
Self-consumption
In the case of HKSAR v Chow Chun Sang, the Court of Appeal held that in drug trafficking cases, when all or part of the drugs were intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on the circumstances, fall somewhere between 10 and 25 per cent of the basic starting point.
In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organised and premediated and the background and criminal record of the defendant. In the case of HKSAR v Liu Ming Sze, the Court of Appeal reiterated that the amount of narcotics for self-consumption must be a significant proportion before the Chow Chun Sang discounting principle could be applied.
In our present case, I find the following facts supportive of the defendant’s assertion that a significant proportion of the drugs found in her possession were for her self-consumption. The urine test report indicates that the defendant was tested positive for opiates, amphetamines and benzodiazepines on five, three and four occasions respectively between 31 January and 4 February 2015. The second urine test report dated 10 August 2015 indicated that she tested positive for opiates, amphetamines and benzodiazepines. Apparatus for the use of ‘Ice’ was found in the defendant’s residence.
The defendant’s first conviction for possession of dangerous drugs dated back to 1992, when she was 21 years old, and she was fined $500. The next conviction for possession of dangerous drugs was in 1996, when she was sentenced to detention at a DATC, drug addiction treatment centre, suggesting that she was drug dependent. The defendant was eventually also sentenced to the DATC in 2002, 2003, 2007 and 2011. I also note that in the last two of the previous convictions for trafficking in dangerous drugs, the defendant was convicted, on the same occasion, of another charge of possession of dangerous drugs.
It is obvious that the defendant had never been able to rid herself of her drug dependency. In fact, the defendant was unable to take part in a video-recorded interview after her arrest due to the fact that she was still under the influence of drugs. Based on those facts, I find that it is a reasonable inference that a significant proportion of the drugs would be for the defendant’s self-consumption.
Given the total quantity of the trafficked drugs, I am of the view that a proper discount is that of 10 per cent, at the lowest of the Chow Chun Sang range.
Mitigating factor
The only mitigating factor is the defendant’s guilty plea. Her case was committed for trial before the introduction of the new sentencing discount guidelines in the case of Ngo Van Nam. The defendant is therefore entitled to the full one-third discount for her guilty plea.
Final sentence
The defendant is therefore sentenced to 127 months and 24 days’ imprisonment, or 10 years, 7 months, 24 days.
This sentence is arrived at by taking 10 per cent off of the enhanced sentence of 213 months, and then applying the full one-third discount for the defendant’s plea of guilty.