The 1st and 2nd charge relate to the same date, that is 18 December 2020, the same location, at Room 1317, 13th Floor, Metropark Hotel Mongkok, but relate to slightly different drugs. The 1st charge of which relates to drugs which were found on your person, which were 9.88 grammes of a mixture containing 8.52 grammes of heroin hydrochloride.
The 2nd charge relates to drugs found in the hotel room, which were, namely, 17.40 grammes of a mixture containing 14.83 grammes of heroin hydrochloride and 12.15 grammes of a crystalline solid containing 11.79 grammes of methamphetamine hydrochloride.
The facts are fairly simple. It was on 18 December 2020 at around 5.43 pm, police conducted an anti-narcotic operation on the 13th floor of Metropark Hotel. At the material time, they were armed with a search warrant for Room 1317. The police officers saw that the room door was opened and then entered the hotel room and found you inside. The search of your body revealed the drugs as stated in Charge 1. They were inside your right inner pocket of your jacket.
Upon arrest and caution for the offence of trafficking in dangerous drugs, you admitted that the pellets were white powder and you were to sell them to others so as to pay for living expenses. Thereafter, a search of the hotel room was conducted and the drugs in the quantity as stated in Count 2 were found.
Also found in the hotel room together with the drugs were items related to the consumption of dangerous drugs, such as a glass bottle inserted with a plastic straw and other items related to trafficking in dangerous drugs, such as a digital scale and numerous transparent plastic bags. I should mention that there were also 10 syringes and lighters found in the room, possibly for consumption of dangerous drugs.
You were again arrested and further cautioned for the offence of dangerous drugs, and under caution, you stated that the ‘Ice’ was for your self-consumption whereas the pellets of white powder, that is the heroin, were intended for sale.
In a subsequent video-recorded interview, under caution, you said you were the person who booked the room and was the only person residing in the room since October. As for the white powder, people would call you for purchasing the white powder. As for the ‘Ice’, it was for your self-consumption. You had a habit of consuming ‘Ice’, but did not need to consume it daily. The syringes were bought for another person. At the time, you were unemployed and were not a recipient of CSSA. You had used the glass bottles for consuming ‘Ice’.
The estimated street value of all the drugs seized was about $41,945.
Defendant, Mr Ernest Yuen, your counsel has submitted his written mitigation on your behalf which I have taken into account. You are now aged 53, divorced with a daughter and a granddaughter. You received up to Form 5 education and was unemployed at the time of arrest.
Mr Yuen submits that you have had a long history of abusing drugs. You have had numerous convictions related to drugs and have been sentenced to DATC twice in 1995 and 2007. You have six previous convictions, two related to possession of dangerous drugs and one related to a tenant permitting the use of premises for trafficking in dangerous drugs. He submitted that you were lured to commit the present offence with a view to earn quick money. Mr Yuen has submitted that although not a significant proportion of ‘Ice’ was for your own consumption, part of the ‘Ice’ due to a long history of abusing drugs, were for your own consumption and asked me to take that into account into reducing the term of imprisonment.
Clearly, the two different types of drugs involved in this case are that of ‘Ice’ and heroin. The sentencing guidelines for heroin are set out in Lau Tak Ming and Others whilst that of ‘Ice’ is set out in Tam Yi Chun. The appropriate starting point for trafficking between 10 and 15 grammes of heroin is 5 to 8 years’ imprisonment whilst the sentencing guideline for ‘Ice’ between 10 and 70 grammes is 7 to 11 years’ imprisonment.
For the present sentencing purposes, I shall take a global approach and combined approach, and convert the drugs to that of ‘Ice’. The total heroin in Charges 1 and 2 is an amount of 23.5 grammes. The total ‘Ice’ in Charge 2 only is 11.79 grammes.
I shall now turn to sentence you individually for both offences and then come to a global figure. If the amount in Charge 1 were to be converted to ‘Ice’, that would be an approximate amount of 3 grammes of ‘Ice’, and the total amount of heroin in Charge 2 were to be converted to ‘Ice’, that would amount to about 6 grammes of ‘Ice’. So the total amount of ‘Ice’ in Charge 2 would be 6 grammes plus 11.79 grammes is 17.79 grammes. So, if all the total drugs in Charge 1 and 2 are converted to ‘Ice’, that would be approximately 20.79 grammes of ‘Ice’.
So, if that amount is taken as the quantity and you were to be sentenced after trial, that would attract a term of 7 years and 6 months’ imprisonment. Giving you full credit for your plea of guilty, that term would be reduced to one of 5 years’ imprisonment and that would be the total term for you to serve.
I shall now deal with the individual charges. In Charge 1, you were trafficking in 8.52 grammes of heroin, that would attract a term of 4 years and 3 months after trial. Giving you full credit for your plea of guilty, that term shall be reduced to one of 2 years and 10 months’ imprisonment.
For Charge 2, you were trafficking in 14.83 grammes of heroin hydrochloride and the appropriate sentence for that amount of drugs would be 5 years and 3 months’ imprisonment.
As I mentioned, if I convert that term to ‘Ice’, that would be approximately 6 grammes of ‘Ice’. Adding the 6 grammes of ‘Ice’ to the 11.79 grammes of methamphetamine hydrochloride to which you are presently charged in Count 2 would equal to 17.79 grammes of ‘Ice’. If you were to be convicted after trial for that quantity of ‘Ice’, the appropriate starting point would be one of 7 years and 3 months’ imprisonment. Giving you full credit for your plea of guilty, that term is reduced to 4 years and 10 months’ imprisonment.
To reflect the global term of imprisonment of 5 years’ imprisonment, I shall order 2 months of Charge 1 to run consecutive to Charge 2 and the remaining term to run concurrent, making a total term of 5 years’ imprisonment.
In respect of the submissions made by your counsel, Mr Yuen, in respect of you being a drug dependent and a small proportion was for your own consumption, it is clear in the case of Wong Suet Hau that the defendant should show that a significant proportion of drugs was for his or her own consumption and not merely a very small proportion before a further discount is received after a plea of guilty. Where in Wong Suet Hau, it was cited with approval the observation made that the gravity of unlawful trafficking in drugs is not mitigated in those cases where the trafficker is trafficking in order to fund drugs intended to feed his own addiction.
In any event, although you say that a small proportion was for your own consumption, it is clear to me from the video-recorded interview that you are not necessarily a heavily-dependent drug dependent as stated in your video-recorded interview, that you do not need to consume ‘Ice’ daily.
In those circumstances, the term shall remain at 5 years’ imprisonment.