CRIMINAL CASE NO. 246 OF 2010
COURT: The defendant pleaded guilty before me to a charge of trafficking in 17.48 grammes of “Ice” and 2.36 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.
The facts of the offence were that in March of this year, police were attracted to an address in Tin Shui Wai by the suspicious behaviour of a person leaving it. Eventually they entered the premises, and found the defendant in a bedroom.
On a stool in the bedroom were a number of plastic bags containing the “Ice” and cocaine particularised in the charge, together with drug trafficking paraphernalia comprised of a number of empty plastic bags and a set of electronic scales.
It is asserted by Mr Chan for the defendant that some part of the “Ice” was for the defendant’s own consumption. Mr Kuan, for the prosecution, accepts that to be so, the defendant having returned a positive test for the consumption of amphetamines when medically examined after his arrest.
There is no doubt that where a defendant is convicted of a trafficking offence, a successful assertion by him that part of the drugs the subject of the charge were intended for his own consumption may reduce his sentence. See HKSAR v Wong Suet Hau CACC366 & 487/2000 and also HKSAR v Cheung Ching Fai CACC443/2005.
Both those cases dealt with general principles rather than the actual procedure of sentencing in such a case, and I have not found, nor been directed to, any case which deals specifically with the mechanics of arriving at the eventual sentence.
In Wong’s case, the court on occasion referred to the fact of some part of the trafficker’s cache of drugs being possessed for self-consumption as a matter of mitigation. I think the court, in making that reference, meant no more than it was a matter which could result in a reduction in the sentence finally imposed.
In my view, the fact of possession of part of the drugs for self‑consumption should go to the starting point of sentence. It seems to me that once it is ascertained, whether by Newton inquiry or whether, as in this case, by agreement, what amount of the drugs was possessed for trafficking, then it will be that amount which establishes an initial starting point of sentence.
That initial starting point will then be enhanced by the amount of the drugs possessed for self-consumption, and the degree of enhancement will reflect the latent risk of those drugs also falling into the wrong hands. That will result in the final starting point of sentence. Any mitigatory factors will then be taken into account, and a final sentence for the offence will then be imposed.
In the present case, it is accepted by the prosecution that about 4 grammes of the “Ice” possessed by the defendant was for his own consumption. That results in a balance of about 13.48 grammes of the drug being possessed for the purposes of trafficking. Taking that amount into account together with the 2.36 grammes of cocaine trafficked by the defendant, I take an initial starting point of 7 years 3 months’ imprisonment.
Taking then into account the 4 grammes of “Ice” possessed for the defendant’s own consumption, and bearing in mind the considerable latent risk attached to that possession, the defendant being a trafficker, I enhance that initial starting point by another 3 months’ imprisonment, resulting in a final starting point of sentence of 7 years 6 months’ imprisonment.
The defendant has three young children by two different women, and intends to marry his present girlfriend. He has also adopted Christianity whilst in prison, and has gained the support of Father Wotherspoon, a chaplain at Lai Chi Kok. But the only substantive mitigation available to the defendant is his plea of guilty. He gets full credit for that.
He is sentenced to 5 years’ imprisonment.