COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug involving 13.6 grammes of a crystalline solid containing 13.3 grammes of methamphetamine hydrochloride, which I will refer simply to as ‘Ice’.
At around 9.12 pm on 24 July 2021, police officers saw the defendant walking from Temple Street to Kansu Street. When the defendant noticed the presence of the police officers, he turned backwards and walked into Temple Street. Feeling suspicious, a police officer asked the defendant to stop. The defendant immediately ran towards Market Street. Despite the police officer’s repeated warnings, the defendant did not stop. The police officer thus gave chase.
When the police officer reached Temple Street near Gascoigne Road Flyover, he saw the defendant throwing a white object from his right hand into a construction site on his right side. Finally, he intercepted the defendant at the entrance of the site.
Upon a search of the site, a plastic bag was found which was wrapped in a piece of white tissue paper containing 13.6 grammes of a crystalline solid containing 13.3 grammes of ‘Ice’.
The estimated street value was $9,003.
Two mobile phones and cash of $190 with a total of four SIM cards were found on the defendant.
At the same time, the defendant was on court bail for another possession offence for which he was convicted on 20 September 2021.
Background and Mitigation
The defendant is currently 40 years old and he received education up to Form 4. Before his arrest, he worked as a construction worker earning around $13,000 per month. He has a 15-year-old daughter who lives with the defendant’s parents.
I have read a letter written by the defendant which had been submitted to me this morning. In the letter, the defendant stated how the three years that he had already been in custody since his arrest had led him to reflect upon his past misdeeds and his prior failures in taking full responsibility for the upbringing of his daughter. The defendant promises to turn a new leaf after he finished serving his prison term and become a responsible father to his daughter and a filial son to his parents.
The defendant has a number of previous criminal records, including two convictions for possessing dangerous drugs, one conviction for possessing a Part I poison and five convictions for trafficking in dangerous drugs for which he was sentenced on the same occasion.
According to the Court of Appeal judgment in respect of the defendant’s appeal against sentence imposed on his previous five trafficking convictions, that is CACC 400/2009, the defendant had sold ‘Ice’ to others on five separate occasions between 21 January 2008 and 14 March 2008. His appeal against sentence was allowed and the Court of Appeal substituted a total sentence of 7 years’ imprisonment after plea in respect of those five counts.
Consideration for Sentence
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, and HKSAR v Lee Ming Ho [2024] HKCA 150. I therefore follow the six-step sentencing approach set out in Yusuph. The sentencing tariff for trafficking in ‘Ice’ is provided for in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For quantities of 10 grammes to 70 grammes, the sentencing band is 7 to 11 years’ imprisonment. For trafficking in 13.3 grammes of ‘Ice’, a mathematically calculated place within the relevant sentencing band would be 7 years 2 months’ imprisonment after rounding down.
On the evidence, there is nothing to suggest that the defendant had any further role beyond the culpability of an ordinary courier. I therefore assess his culpability on that basis and adopt the mathematically calculated starting point.
The defendant had, however, committed the present offence whilst on court bail for another offence. This is an aggravating factor. As the Court of Appeal said in HKSAR v Wong Yun Fat [2017] 4 HKLRD 59 at paragraph 48:
“The issue is not whether the sentence should be enhanced, but rather by how much it should be enhanced.”
This is to reflect the defendant’s serious disregard for the law and the persistence in offending. However, I take into account the fact that the defendant would appear to have truly reflected upon where his life has taken him so far, his recognition of the disappointment that he has been to his daughter and his parents and his determination to turn a new leaf. This is something that the court will encourage.
For that reason, I will only enhance the starting point by 2 months to 7 years 4 months’ imprisonment.
As noted above, the defendant has five previous trafficking convictions relating to five separate instances of trafficking in ‘Ice’. However, given that those numerous convictions were sentenced together and that they are already 15 years old, I will not enhance the starting point further for this factor.
The main mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount off the starting point which brings the sentence down to 4 years 10 months’ imprisonment.
The defendant also claimed that a small proportion of the ‘Ice’ in his possession at the time were for his own consumption. Where the court is satisfied that only part of the drugs were for self-consumption rather than a significant part, the court still has a discretion to decide whether the defendant should be given any reduction in sentence for that reason and the extent of it, according to the individual circumstances of each case (see HKSAR v Kong Tat Lung [2017] 6 HKC 448 at paragraphs 58 and 59).
The defendant was clearly a drug addict at the time. According to a urine test report dated 21 October 2021, the defendant’s urine sample taken on 27 July 2021 after he had been arrested for the present offence and had been held in custody tested positive for amphetamine. Given the above, the prosecution fairly does not dispute that a small portion of the ‘Ice’ found in the present case was for the defendant’s own consumption.
I would therefore proceed to sentence on this basis and reduce the sentence by another 2 months to take into account this factor. This reduces the defendant’s sentence to 4 years and 8 months’ imprisonment.
Defendant, I sentence you to 4 years 8 months’ imprisonment.