As a result of the interception, the accused was searched and police found the following:
(1) In the cross-shoulder bag carried by the accused, the police found a transparent resealable bag containing 10 plastic bags containing a total of 1.5 grammes of a solid containing 1.23 grammes of cocaine.
(2) In the waistband of the trousers of the accused the police found:
(a) a piece of tissue wrapping a transparent resealable bag containing 6.39 grammes of a crystalline solid containing 6.16 grammes of methamphetamine hydrochloride; and
(b) a piece of tissue wrapping a transparent resealable bag containing three plastic bags containing a total of 3.77 grammes of a crystalline solid containing 3.64 grammes of methamphetamine hydrochloride. There was another substance which is not a matter of concern under the Dangerous Drugs Ordinance.
The police also found a mobile phone in the possession of the accused and a SIM card. They also found HK$571.20. They found nothing of relevance on the female who was with the accused.
He was arrested for trafficking in dangerous drugs and he was cautioned. The accused asserted that everything in his possession was for his own consumption.
Both the accused and the female who accompanied him were taken to the Mongkok Police Station where a further and more careful search of the cross-shoulder bag was undertaken. Inside that bag the police found:
(1) A grey coloured foil bag containing a piece of tissue containing a plastic bag containing 13.2 grammes of a crystalline solid containing 12.7 grammes of methamphetamine hydrochloride;
(2) Also, a further grey coloured sealed foil bag containing a transparent resealable plastic bag containing four plastic bags containing 5.74 grammes of a crystalline solid containing 5.52 grammes of methamphetamine hydrochloride;
(c) A stack of grey coloured foil bags and three transparent resealable plastic bags, each containing stacks of transparent resealable bags.
The accused was further arrested and cautioned and continued to assert that all of this was for his own consumption.
The suspected dangerous drugs were conveyed to the government chemist and on analysis, it was found that there was:
(1) 1.5 grammes of a solid containing 1.23 grammes of cocaine; and
(2) 29.1 grammes of a crystalline solid containing 28.02 grammes of methamphetamine hydrochloride.
The accused submitted to a video-recorded interview and under caution he told the police that the substances found on him were ‘Ice’ and ‘coke’ respectively. He further told them that the 10 plastic bags containing the 1.5 grammes of a solid containing 1.23 grammes of cocaine had been bought from a man near the bridge of the train station on Waterloo Road. He said that he also bought the methamphetamine hydrochloride found in the waistband from the same man at the same time. He admitted the substance in the foil bags seized from the cross-shoulder bag of the accused was ‘Ice’ and it was packaged like this when he bought it. He told the police he was unemployed and had been so for something of the order of three months.
A search was conducted at his residence and no further suspicious items were found. The street value of the dangerous drugs seized in this case in April 2020 were just over $1,500 for cocaine powder and $1,900 for crack cocaine, and the methamphetamine hydrochloride was valued at just over $18,500.
Procedural Matters
The accused was put up before a magistrate and after a number of adjournments he came before Mr Daniel Tang Siu-hung, sitting as a magistrate in West Kowloon. The proceedings were, by that stage, committal proceedings and on 30 August 2021, the accused pleaded guilty and admitted the Summary of Facts contained in the papers. The Summary of Facts contained an assertion in paragraph 13 that at the material time in Mongkok, the accused unlawfully trafficked in dangerous drugs seized in this case. The learned magistrate committed the accused to this court for sentence. His plea and the Admitted Facts have been confirmed by counsel this morning. He is accordingly convicted.
Antecedents and mitigation
The accused is a 35-year-old man born in Hong Kong. He was educated up to secondary Form 3. He is single, has worked as a carpenter. His father is dead and his mother and siblings have been out of contact with him for many years. He claims to be addicted to methamphetamine hydrochloride for about 11 years.
He has many previous convictions. Those started in 2006 with a conviction for robbery for which he was sentenced to 40 months’ imprisonment in the High Court. Following that, in 2012, he had some drug offences and a series of property offences and, I have been informed, later convictions for possession of dangerous drugs.
I have been supplied by counsel representing the accused with a letter from the accused in which he expresses his remorse for his conduct and promises to be a better person in the future. I sincerely hope that that is true.
Sentencing Principles
Seriousness of the Offence
For many years, the community of Hong Kong has taken a severe view of drug trafficking - particularly in relation to drugs such as those which are the subject of the charge, and it is easy to see why, particularly in relation to cocaine and methamphetamine hydrochloride. Both drugs have terrible consequences for the individual. They are addictive and methamphetamine hydrochloride savagely so. Ridding oneself of that addiction is, to say the very least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to cocaine is fraught with instances of disappointment. There are consequences - sometimes serious ones - for the families of persons who become addicted to these drugs.
The view of the Hong Kong community is reflected in the maximum sentence provided by section 4 of the ordinance. That provides for convictions on indictment of a maximum sentence of life imprisonment and a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentence and the levels of the sentences composed traditionally for drug trafficking. The policy underlying the approach to sentencing for drug trafficking is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs, the subject of the charge.
The source of the guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming and Others [1990] 2 HKLR 370. Also, in the Attorney General v Rojas [1994] 1 HKC 342 and R v Chang Chen Liu Sa [1994] 3 HKC 685, the Court of Appeal declared that the guidelines in R v Lau Tak Ming and Others (above) are appropriate for cocaine. The correctness of the guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.
The applicable guideline for the sentencing for quantities below 10 grammes is a sentence of between 2 and 5 years, imprisonment.
In relation to methamphetamine hydrochloride, the guidelines are articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. In that case, the Court of Appeal suggested guidelines for up to 600 grammes of ‘Ice’. For between 10 grammes and 70 grammes of ‘Ice’, the suggested guidelines are imprisonment between 7 and 11 years. The range in question is upon the basis for sentence following a conviction after trial. That is the basis upon which the starting point is calculated.
Role of the Accused
It is critical to determine the role of the accused in the crime (see HKSAR v Herry Jane Yusuph [2021] HKLRD 290, [2020] HKCA 974 § 49, 58-61, 64-68). In this case, the Court of Appeal recognised that although the analytical starting point for the sentencing guidelines of drugs such as cocaine and methamphetamine hydrochloride start upon the premise of sentencing for a courier or a storekeeper, there is a range of culpability and even if the trafficker can be characterised, as in this case, a courier. The Court of Appeal held that an accurate reflection and characterisation of the role of the accused is critical because, in appropriate cases, it would be open to the sentencing court to sentence the accused above or below the mathematical application of the relevant guideline. The Court of Appeal rejected the sentencing approach in trafficking-in-dangerous-drugs cases where the sentence was based solely on narcotic content.
Discount for a Plea of Guilty
The well-accepted principles of sentencing recognise that where an accused person pleads guilty at the earliest practicable moment that a discount from the appropriate starting point of 33 per cent would be applicable.
Cocktail of drugs
The accused carried more than one dangerous drug. Different sentencing considerations apply to each drug. Moreover, if the sentences were simply aggregated, there would be a good deal of injustice. The appropriate course is to consider an overall sentence. The courts have developed a series of tests to provide assistance in determining that sentence. The tests are themselves fundamentally artificial but they nevertheless provide an insight into the appropriate approach. I am grateful to both parties for providing detailed submissions as to this.
Under the combined approach, given that by common consent methamphetamine hydrochloride is the more serious drug, and treating cocaine as methamphetamine hydrochloride, then the court would be sentencing on a total of 29.25 grammes of methamphetamine hydrochloride. On that premise, a mathematical approach of the relevant guideline would produce a sentence of 8 years and 3 months.
If the conversion test were applicable, all of the narcotic was converted to cocaine, then that would be equivalent to around 55 grammes of cocaine. Converting that then, the total amount of cocaine would be 56.23 grammes. That would, on a mathematical application of the relevant guidelines, produce a sentence of 8 years and 1 month.
If the ratio test was applied, the outcome would be something of the order of 8 years’ imprisonment.
Application of Sentencing Guidelines
Reviewing all of the relevant tests, I think that the appropriate point for starting analysis is 8 years and 1 month. I have been at pains to make the point that each of these tests proceeds on the premise of a mathematical calculation of the relevant guideline. It is necessary to bear this in mind when considering the appropriate starting point, that given the role that the accused plays in the assessment of the appropriate sentence, I would then have to consider the issue of self-consumption.
The Admitted Facts did not explicitly identify the role of the accused. Part of the cocaine was in plastic bags containing smaller amounts of cocaine. This, so it seemed to me, to be highly suggestive of these drugs being possessed for actual trafficking. The possession of a number of bags together with the bulk of the methamphetamine hydrochloride suggests to me that this bulk was packaged into those small packages. On that premise, the role of the accused could be considered to be more than a storeman or a courier. The mathematical application of the guidelines are premised on that sort of role. If the accused was to be characterised as possessing the drugs as an active trafficker, then it would be appropriate to sentence at a higher level than the mathematical application of the relevant guideline. The problem with this is that in order for the court to do so, it would have to be satisfied to the criminal standard because it would be a matter of aggravation, and for that I cite R v Cheng Ching Kwong [1986] HKC 109 and HKSAR v Chong Chee Meng [2008] 6 HKC 407. There is no concession to that that this was what was going on, and indeed, it was contended that at least some of the drugs were destined for self-consumption. Accordingly, given that the only admission is the accused possessed drugs for unlawful trafficking (see paragraph 13 of the Summary of Facts), I do not think I could be satisfied that sentencing over the mathematical application of the guidelines is appropriate. Clearly, the facts amply justify a sentence on the mathematical application, and subject to the issue of self-consumption, a mathematical application of the guidelines is the appropriate point for analysis.
It was contended that part of the drugs possessed by the accused were for self-consumption. There is clear evidence to support such a proposition because, at least, so far as methamphetamine hydrochloride is concerned, there is evidence that this was consistently found in urine tests conducted by the Commissioner of Correctional Services. Further, in his antecedents, it is asserted that he has been a methamphetamine hydrochloride addict for something of the order of 11 years. He said so in his video-recorded interview.
The problem is that it has long been recognised that even possession of dangerous drugs is a serious offence. That would be particularly true of possession of dangerous drugs such as methamphetamine hydrochloride and cocaine. The court would have to consider the appropriate sentence for a portion of the drugs for self-consumption and also issues of latent risk. That has driven appellate courts in this jurisdiction to make the obvious point that if such a submission was to have any material effect on sentence, the amount for self-consumption would have to be substantial. In my judgment, if ever there was a case where latent risk was writ large, it would have to be this case. So, simple possession of a portion of the drugs would reduce the sentence but latent risk drives the sentence back up again. I think the quantity for self-consumption was substantial although I am not able, with confidence, to identify precisely how much that is. The assessment of the quantity for self-consumption and the reduction of sentence is, accordingly, almost of necessity, a highly imprecise science.
I also take into account the expression of remorse by the letters supplied to the court. I sincerely hope that the accused keeps his promise to emerge from prison a better man than when he entered it. Although he has a skill in terms of carpentry, he would be very well-advised to actively consider taking advantage of the educational facilities offered by the Commissioner of Correctional Services. This might provide an element of reality to his promise to emerge a better man.
Applying the one-third discount to a sentence of 8 years and 1 month produces a sentence of 5 years and 5 months. Reducing that by a further 10 per cent to allow for self-consumption produces an overall sentence of 4 years and 9 months, and that is the sentence of the court.