COURT: The defendant pleaded guilty before a magistrate to one charge of trafficking in dangerous drugs and was committed before me for sentence. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs involved, personal background of the defendant and mitigation put forward on his behalf by learned defence counsel. I have also had regard to the sentencing approach as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph, CACC 93/2019 and HKSAR v Islam S M Majharul, CACC 67/2019.
The facts of the case may be summarised as follows.
On 7 October 2021, the defendant boarded a vehicle, sat in the driver’s seat and turned on the engine with a car key. Police officers who had been observing him asked him to alight from the car. An officer searched him and found in his trouser pocket, a cigarette box containing an electronic scale. In a black glove the defendant was wearing, a resealable plastic bag containing dangerous drug commonly known as ‘Ice’ was found. At that time, the defendant became emotional and had to be handcuffed.
Upon arrest for possession of the drug, he said under caution that the item was ‘Ice’ and was for his own consumption.
The drug found in the glove was 2.19 grammes of a crystalline solid containing 2.15 grammes of ‘Ice’. When officers then searched the car, more dangerous drugs were found. The drugs were found inside a white plastic bag put inside a recycled bag placed on the floor of the rear passenger seat. The drugs inside the bag were:
(1) 36.67 grammes of a crystalline solid containing 35.85 grammes of ‘Ice’. The ‘Ice’ was contained in 19 resealable plastic bags;
(2) 0.17 grammes of a solid containing 0.15 grammes of cocaine in one resealable plastic bag;
(3) 10 hand-rolled cigarettes containing 2.47 grammes of cannabis in herbal form.
Having found these drugs, an officer arrested the defendant for trafficking in the drugs. Under caution, the defendant said the items found were ‘Ice’ and the cannabis was for his own consumption.
In a subsequent video-recorded interview, the defendant made further statements including the following:
(1) The car belonged to his fiancée and she allowed him to drive it;
(2) he said the recycled bag belonged to a friend called PY who was the person who bought the ‘Ice’ and cannabis therein;
(3) he had given the car key to PY about 10 days ago and told PY to put the dangerous drugs he had purchased inside the car;
(4) he did not expect PY to put the drug there so soon;
(5) he had bought from PY the ‘Ice’ at the price of $6,000.
(6) the cannabis was given to him by PY for free;
(7) he took ‘Ice’ daily but he had never tried cannabis before;
(8) PY had told him that smoking cannabis would make one easier to sleep;
(9) when the interviewer then showed to him for the first time, during the interview the recycled bag and the plastic bag of the dangerous drugs seized from the car, the defendant said they all belonged to PY and he had no idea about the same;
(10) when the interviewer asked him why he said upon arrest that they all belonged to him, he said he could not remember clearly at that time;
(11) he admitted that the drug in his glove was ‘Ice’ and belonged to him. He bought it from PY at the cost of $1,300;
(12) he had an electronic scale because PY often cheated when he was selling drugs to him;
(13) the cash and mobile phone seized belonged to him and were for his own use.
I was told that the defendant is single, 52 years of age. He completed primary school education. He had worked at construction sites repairing aluminium window frames but at the time of the offence was not working due to injury.
The defendant has a bad criminal conviction record but none related to dangerous drug. The offences he committed included those relating to vehicle maintenance, driving, unlawful use of force, stealing, and possession of unlawful items which were not dangerous drugs. The record does not have a negative impact on the sentence.
Learned counsel for the defence, Mr Charles Chiu, urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity and is remorseful. The defence also produced a letter from a pastor who said he had known the defendant for a long time and found him a person of good nature. He is confident that the defendant will turn a new leaf and ask for leniency.
Mr Chiu informed the court that no organised drug syndicate was involved. I consider sentence on this basis.
Whilst Mr Chiu said the defendant accepts that the cocaine and most of the ‘Ice’ were either for selling or sharing with others, he asked the court to accept the following assertions of the defendant:
(1) The ‘Ice’ found in his glove was for his own consumption; and
(2) the cannabis was primarily for his own consumption but he might share the drug with others if he has drug to spare.
Three drugs were involved in this case. In consideration, I follow the approach as stated by the Court of Appeal in HKSAR v Islam S M Majharul [2020] 3 HKLRD 146. In the circumstances of the present case, I see no reason to depart from the tariff for each type of the drugs.
‘Ice’ was obviously the most prominent drug both in terms of its potency and quantity. The total narcotic content of the ‘Ice’ was 38 grammes. According to HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, if the quantity is between 10 and 70 grammes, a sentence of 7 to 11 years should be considered. In my judgment, this quantity of ‘Ice’ alone attracts a starting point of about 8 years and 10 months.
It is the assertion of the defendant that the ‘Ice’ in his glove was for his own consumption and the narcotic of that bag of ‘Ice’ was 2.15 grammes. If this quantity is completely taken out for the purpose of sentencing, the difference in the sentence is in the region of 2 months. In consideration of whether to accept the assertion of the defendant and its impact, if any, on the sentence, I have had regard to the Court of Appeal cases of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, and HKSAR v Tam Ling Yuen, CACC 159/2015.
I bear in mind that the ‘Ice’ inside the glove was contained in a resealable plastic bag. When this bag of drug was found, the defendant said at once that the ‘Ice’ was for his own consumption. He maintained this assertion consistently. The criminal record of the defendant is not good, but it does not include any offence relating to drugs. Of course, this does not necessarily mean that the defendant is not a person consuming dangerous drugs.
I have considered the whole of the relevant circumstances, not only that I have much reservation in accepting the assertion, I note that the assertion is not that a substantial proportion of the dangerous drug in the defendant’s possession was for his own consumption. At the same time, I take into account that the offence of possession of dangerous drug itself carries a custodial sentence. Besides, my assessment of the latent risk is that it was substantial. All in all, I do not find the notional sentence after trial should be adjusted in the defendant’s favour by reason of the assertion I have just mentioned.
Apart from ‘Ice’, there were cocaine and cannabis. The quantity of these two types of drugs was much less. The additional quantity by itself has little significance in the consideration of sentence, no matter whether the assertion of the defendant about the cannabis is accepted or not.
On the other hand, I bear in mind that trafficking in different types of drugs presented two possible aggravating features of a wider market and the effect on users of combination of dangerous drugs. Having regarded the fact that the majority of drugs was ‘Ice’ and the quantity of the other two drugs was minimal, in all the circumstances I am of the view that the sentence should be enhanced by about 2 months for this factor.
On behalf of the defendant, Mr Chiu also asserted that some of the drugs were only shared with others, not for selling. He did not specify the quantity or proportion of the drug which would be dealt with this way. In this regard, I have regard to the observation of the Court of Appeal in HKSAR v Wong Suet Hau that “it is the very fact of supply or making possible the supply to others, whether for commercial gain or not, which needs to be dealt with rigorously. Making fine distinctions between different forms of trafficking and the motives behind them will only serve to undermine the core policy of providing consistent levels of sentencing for traffickers based on the weight of the narcotics being trafficked.”
Having considered the whole of the circumstances, applying the relevant tariff, I adopt 9 years as the notional sentence after trial.
The defendant pleaded guilty before a magistrate and for this he is entitled to a one-third discount. Having considered the whole circumstances, including what Mr Chiu mitigated on the defendant’s behalf, I am of the view that one-third is the extent of discount the defendant is entitled to.
Defendant, for the reasons I have said, I sentence you to an immediate imprisonment term of 6 years.