COURT: The defendant pleaded guilty before a magistrate for one count of trafficking in dangerous drugs. He is now committed for sentence. On 10 November 2023, at around 3 minutes after midnight, the police conducted an anti-narcotics operation and entered Room B, 7th floor of Lucky Building, Castle Peak Road, Tuen Mun. The defendant was found inside a storeroom of the premises.
Upon search of the premises, drugs in plastic bags were found at various places in the storeroom. It was later confirmed that the drugs found were in total: 135.21 grammes of a mixture containing 107.36 grammes of heroin hydrochloride; 63.7 grammes of a solid containing cannabis in herbal form; 107 tablets containing 1.37 grammes of midazolam; 23.06 grammes of a crystalline solid containing 23.06 grammes of methamphetamine hydrochloride; and 7.12 grammes of a solid containing 5.43 grammes of cocaine.
Besides paraphernalia including an electronic scale, a large number of empty transparent resealable plastic bags were found. A tenancy agreement with the defendant’s name as tenant and ‘Ice’ bottles were also found inside the premises.
Under caution, the defendant admitted that the drugs belonged to him and he intended to sell the drugs for earnings.
In a subsequent video-recorded interview, the defendant said he rented the premises for half a year at a monthly rent of $7,600 and cohabited with his girlfriend there. An unknown person would place drugs in the park for him to pick up and he would repack the drugs to sell to customers. The two ‘Ice’ bottles found were used for consuming drugs and he had a habit of consuming drugs for 20 years.
The total estimated street value of the drugs involved is HK$146,640.
The defendant is now 45 years old. He has three previous convictions of possession of dangerous drugs and one trafficking in dangerous drugs. The defendant and his father wrote a letter to the court asking for leniency, saying that the defendant is now very remorseful and he wants to start a new life. The defendant is now a Christian and he has been involved in bible works and studying training courses.
Mr Wong, counsel for the defendant, also asked this court to give the defendant a discount on sentence in consideration that part of the drugs, specifically those found on the folding table, were for the defendant’s own consumption.
In consideration of sentence, this court has to adopt the six-step approach set out in HKSAR v Herry Jane Yusuph and also to follow the guidelines set out in HKSAR v Huang Ruifang.
This is a case involving different kinds of drugs. As submitted by Mr Wong, in deciding the appropriate starting point based on the quantities of drugs, this court has to countercheck with the absurdity test, the conversion test, and the ratio test. Mr Wong has helpfully set out in his written submission of the results of applying different tests, using the guideline laid down in Huang Ruifang. I will not set out in detail the results arrived at by Mr Wong.
I agree with Mr Wong that the combined approach should be adopted for sentencing. And in consideration of purely the quantities of drugs involved, the appropriate starting point should be 10 years and 6 months’ imprisonment, having neglected the quantity of midazolam and cannabis involved, which can have negligible effects on the overall sentence.
Having said that, however, I would raise the starting point for 6 months due to the defendant’s role and the fact that different kinds of drugs are involved.
Mr Wong submitted that part of the drugs seized were for the defendant’s own consumption. Specifically, it is the case of the defendant that the heroin and cocaine found on the folding table were for his own consumption. Mr Wong submitted that as the urine test of the defendant was positive, there is evidence that some drugs were for his own consumption.
I am unable to accept that a significant portion of the drugs were for the defendant’s own consumption. Although there is evidence that the defendant was a drug addict, the quantity of the drugs allegedly for the defendant’s own consumption was large and presumably expensive, and in my view there is no evidence that the defendant would have sufficient income to spend such a large amount of money to buy this quantity of drugs for use in one go.
The evidence tells otherwise that the defendant has got only 1,700 in his possession at the time he was arrested. And according to the defendant, those money were proceeds of drugs he sold. The alleged quantity of drugs for his own consumption was disproportionate to the apparent income he has got. So I am not satisfied that a significant portion of the drugs were for the defendant’s own consumption and therefore I see no reason to give any substantial discount on sentence because of this.
However, I do accept that some of the drugs might be for the purpose of the defendant’s own consumption, although not a significant portion. For this factor, I will reduce 3 months of the starting point because of this. So the appropriate starting point or overall sentence is therefore 10 years and 9 months’ imprisonment.
Apart from the defendant’s guilty plea, there is no other valid mitigating factor. The sentence is therefore reduced to 7 years and 2 months’ imprisonment, giving the full one-third discount on the defendant’s guilty plea.