COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug in the Eastern Magistrates’ Court on 24 April 2024. He was committed to the Court of First Instance for sentence. The defendant had confirmed his plea and admission of the Amended Summary of Facts before me.
The charge was that on 8 March 2023, outside 138 Portland Street, Mong Kok, the defendant unlawfully trafficked in a dangerous drug, namely, 31.03 grammes of a crystalline solid containing 30.91 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.
The Facts
This is a stop-and-search case. At around 1.18am on 8 March 2023, the police intercepted the defendant outside 138 Portland Street. The defendant lowered his head and turned away when he saw the police.
Upon search, a total of 31.03 grammes of crystalline solid containing 30.91 grammes of ‘Ice’ and 1.03 grammes of cannabis in herbal form were found on him. The ‘Ice’ were packaged separately in six plastic bags containing various quantities, from 0.11 grammes to 13.6 grammes of ‘Ice’ and were found in the right pocket of his shirt, in the waist bag carried by him, and in a red packet adhered to his lower back, hidden between his jeans and underwear.
The defendant was arrested for trafficking in a dangerous drug. Under caution, he claimed that the drugs were for his self-consumption.
He was searched again when he was escorted back to Mong Kok Police Station. HK$1,288 odd cash was found on him, amongst other things. Under caution, the defendant said in a video-recorded interview that he bought the drugs from a friend “Ah Keung”.
When asked about the contact, he said he would only occasionally bump into him. He would need to ask his Mahjong friends to find Ah Keung. He would play Mahjong at 2nd floor of 138 Portland Street, where he also bought the drugs there.
He bought the drugs at about $8,000. The drugs cost about $6,000 per ounce. He did not remember how much he bought. He said he bought the drugs in a batch as it was cheaper to do so. He said he would consume the drugs using a bottle.
He said he did not have a regular consumption habit but would consume whenever he wanted and would consume the drugs at home. He claimed he had a drug habit for 10 odd years. He also said he was a casual worker and relied on CSSA and income from casual employment for living.
House search was conducted at the defendant’s residence at Sham Shui Po on 8 March 2023. No drug consumption paraphernalia was found. The police visited the place at Portland Street, where the defendant claimed he would play Mahjong, but no Mahjong tables nor drugs were found.
In March 2023, the average retail price for methamphetamine was $672 per gramme. The ‘Ice’ seized from the defendant could have been sold at a street level for $20,832.
Antecedent and Mitigation
The defendant was 65 years old at the time of arrest. He is now 66 years old. He was educated up to primary school. He was 14 previous convictions, eight of which were related to dangerous drugs.
His last conviction was possession of dangerous drugs in March 2019. The defendant was last convicted of trafficking in dangerous drugs in January 2013, where he was sentenced to 9 years and 3 months’ imprisonment. His last discharge from prison was on 12 June 2019.
In mitigation, Mr Chan, for the defendant, submitted that the only valid mitigating factor is the defendant’s timely guilty plea.
Consideration of Sentence
The sentencing approach in trafficking cases is laid down in Herry Jane Yusuph and further clarified in Lee Ming Ho. I now determine the sentence following the six-step sentencing approach set out in Yusuph.
There are clear sentencing tariffs provided by the Court of Appeal for trafficking in ‘Ice’: see Tam Yi Chun. For 10 to 70 grammes of ‘Ice’, it falls within the band of 7 to 11 years’ imprisonment. An arithmetical application of weight-based starting point is one of 8 years and 4 months’ imprisonment.
As for the defendant’s role and culpability, there is no evidence before me to suggest the defendant had any further role beyond the culpability of a courier.
And as for steps four and five, requiring me to consider whether there are any aggravating factors or any mitigating factors. The defendant has a substantial criminal record going back to 1983, involving numerous offences of gambling and possession of dangerous drugs.
However, in 1994, he was sentenced in the High Court to 5 years’ imprisonment for trafficking in a dangerous drug. And in 2013, he was also sentenced to a lengthy term of 9 years and 3 months’ imprisonment, which is also for trafficking in dangerous drugs. This is the third time he has been convicted of trafficking.
However, Mr Chan submitted that since his last discharge from prison, it was about five years ago, or about four years since the date of his last charge. It was pointed out in Lee Ming Ho that a previous similar record is a specific aggravating feature. At paragraph 70, the Court of Appeal held that the trafficker’s previous convictions of trafficking offence is better understood as a separate factor which is capable of aggravating a sentence of an offender who has not learnt his lesson and repeated the offence, and thus requiring a significant element of personal and public deterrence.
However, in determining an enhancement to a sentence by any aggravating factor, I should ensure that the degree of enhancement should be reasonably proportionate to the basic sentence, and the total ultimate sentence should not be excessive.
The notional starting point is enhanced by 3 months, that is the starting point of 8 years and 7 months’ imprisonment.
Regarding mitigating factors, personal circumstances count for little unless they are exceptional in trafficking cases. There are none in this case.
For the sake of completeness, I should point out that notwithstanding his previous claim in the video-recorded interview that the drugs in question were for his own consumption, the defendant never sought a Newton hearing in order to testify in support of such a claim. There was, accordingly, nothing to show that a “significant proportion” of the drugs was for his own consumption, so as to justify a reduction in his sentence: see Wong Suet Hau at paragraph 34.
As to what is a significant proportion, it was said to be of such proportion that it may well make a difference to sentence. The credibility of the claim for self-consumption must be on a proper factual and evidential basis: see Choi Chun Wo at paragraph 37.
Having considered the surrounding circumstances, there is no credible evidence that the defendant would consume a significant proportion of the ‘Ice’ found on him. No ‘Ice’ bottle was found during the house search of the defendant’s residence.
According to the Amended Summary of Facts, the agreed estimated street value of the ‘Ice’ seized was $20,832. The defendant relied on CSSA and income from casual employment for living.
I have made known my preliminary views to Mr Chan, who confirmed the defendant would not be giving evidence in the witness box to support his claim for self-consumption.
I conclude there is no credible evidence that a significant proportion of the ‘Ice’ was for the defendant’s own consumption.
The real 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 5 years 8 months’ imprisonment after rounding down.
I am of the view the ultimate sentence of 5 years 8 months’ imprisonment is appropriate and is not out of proportion to the defendant's overall criminality.
The final sentence I would impose on the defendant is one of 5 years 8 months’ imprisonment.