COURT: On 30 May 2024, the defendant pleaded guilty to two charges of trafficking in dangerous drug and one charge of theft. Charge 1 involves a total of 12.7 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’. Charge 2 involves a total of 7.4 grammes of ‘Ice’ and 0.26 grammes of cocaine. And Charge 3, the charge of theft, relates to a bank card issued by the Bank of China in the name of a person called So Kai-tak.
According to the Summary of Facts to which he pleaded guilty, in the afternoon on 2 February 2023 the police spotted the defendant and his son alighting a vehicle with registration number of WJ6913 at a parking space outside Wing Yuen House, Chuk Yuen South Estate in Wong Tai Sin. The police intercepted the defendant and upon search, one resealable plastic bag containing the drug in Charge 1, a bank card that is the subject matter of Charge 3, cash of $2,970 and a notebook written with names and corresponding amounts were found on his person.
The defendant was then escorted to the vehicle, and upon search the police found the drug particularised in Charge 2 and also two ‘Ice’ bottles, one of which contained traces of cocaine.
Under caution, the defendant said that the vehicle and the ‘Ice’ bottles belonged to him. He said the dangerous drugs were bought by himself for self-consumption and he had consumed ‘Ice’ for three months. He further said that he did not know the owner of the bank card and he just picked it up on the street when he saw it.
The estimated street value of the dangerous drugs was $10,139.
By his plea of guilty the defendant now accepts and admits that he possessed the dangerous drugs in all of Charges 1 and 2 for the purpose of unlawful trafficking. He also accepts that he dishonestly appropriated the bank card with intent to permanently deprive the owner of the card.
The defendant had a series of criminal record including two convictions for the offence of theft, five convictions for the offence of possession of dangerous drug and one conviction for the offence of trafficking in dangerous drug. He was convicted of the offence of possession of dangerous drug since 1992, that is over 32 years ago. His last conviction was that of trafficking in dangerous drug. He was convicted on 20 August 2012 and was sentenced to 4 years 11 months’ imprisonment for that matter.
The defendant is now 51 years of age. He has received education up to Secondary 1 level. He was unemployed at the time of arrest. In respect of his family members, he is married with a wife and two sons. Mitigating letters were also written by his wife, his mother and elder brother asking this court for leniency.
In mitigation, counsel Mr David Ma urged this court to take into account the fact that he pleaded guilty at the committal stage, so he is fully entitled to a one-third discount. Counsel rightly admitted that the case is aggravated by his criminal record, especially his record for the possession of dangerous drug and the record of trafficking in dangerous drug. I also noticed that he has a conviction for the offence of theft in the past on two occasions.
Counsel submitted that the defendant has drug addiction for over 20 years. Under caution in this case he informed the police that he consumed 3 grammes of ‘Ice’ on each occasion for the last three months, and that the ‘Ice’ bottles found in the vehicle belonged to him. Counsel urged this court to take into account the fact that a significant proportion of the drugs found were used for self-consumption and asked this court to give him an additional discount for that matter. Counsel also informed this court that his employer will provide a job for the defendant after he is released from imprisonment.
In respect of Charge 3, the defendant told the police that he picked up the card on the street. There is no evidence to suggest that the card had been used or indeed there is no evidence to suggest that the card owner had made any report to the police or the bank at all. Counsel urged this court to take into account that this is a matter of theft by finding, to adopt a starting point of 1 month and to impose a concurrent sentence of imprisonment in respect of Charge 3.
I shall first of all deal with the claim of self-consumption because it clearly affects the discount to be given to him in his sentence. The guiding principles for a sentencing court in respect of the claim of self-consumption have been set out in a number of Court of Appeal decisions. The factors to be considered are set out by the Court of Appeal in the case of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, and I will not set out all the factors now because they are clear to everybody. Usually, a court will be able to determine the issue from all those factors without a Newton hearing. And the court has to bear in mind that even possession of drugs for self-consumption itself carries a term of imprisonment with possible enhancement for the latent risk that the drug will be accessed or distributed to others.
I also bear in mind the principles stated in the case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1116. In this case, the Court of Appeal held that when all or parts of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somehow between 10 per cent and 25 per cent off the basic starting point. In determining the issue of self-consumption, the sentencing court must first find that a significant proportion of the drug was to be consumed by the defendant. If he does not meet this threshold, he is not entitled to the discount as suggested in Chow Chun Sang.
In the present case, I am informed that indeed upon his admission to the Lai Chi Kok Reception Centre, his urine test was positive for ‘Ice’ and also cocaine. This information is confirmed by the prosecution.
Even though counsel said he could not quantify the amount of drug for self-consumption, he asked this court to take into account the fact that the urine test was positive in result and the fact that he had been a drug addict for over 30 years, as one can see from his criminal record for the offence of possession of dangerous drug. Also two ‘Ice’ bottles were found on the vehicle and traces of cocaine was found on one of those bottles.
Counsel also urged this court to take into account the fact that upon his arrest by the police, he immediately informed the police that the drugs were for his self-consumption. But, pausing here, I must point out that to accept that the whole quantity of the drug was for self-consumption would be totally inconsistent with his plea of guilty to the offence of trafficking in dangerous drug in Charges 1 and 2.
In respect of the drug in Charge 1, I consider that a higher quantity or most of the amount should be for delivery purpose instead of for self-consumption. The defendant did not give or call evidence to support his claim of self-consumption, so I take into account the circumstances of his arrest. At the material time, he just alighted from the car with the drug on his person together with a notebook containing certain figures, but of course there is no information in respect of what those figures or numbers were about.
However, his own residence was in Shek Kip Mei area and he was found in Wong Tai Sin area at the material time. If the drug was for self-consumption, there was no point for him to carry the drug together with him when he alighted from the vehicle in another area. So that is the main basis why I find that most of the quantity of the drug in Charge 1 should be for delivery purpose instead of for self-consumption.
In respect of Charge 2, I accept counsel’s submission that a large proportion of the drug should be for self-consumption, taking into account his criminal record, his long history of drug addiction, his admission to the police at the material time and his urine test report. So bearing in mind all those factors, I consider that it would be fair to give him a certain additional discount for the factor of self-consumption.
I shall now come to the sentence in respect of Charges 1 and 2 for the offence of trafficking in dangerous drug. In sentencing the defendant, I bear in mind the approach set out by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 as modified by the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186. In respect of the amount of ‘Ice’ narcotic involved in Charge 1, that is 12.7 grammes of ‘Ice’. In respect of Charge 2, that is 7.4 grammes of ‘Ice’ and 0.26 gramme of cocaine narcotic. So altogether the quantity of ‘Ice’ narcotic is 20.1 grammes and cocaine narcotic is 0.26 gramme.
Taking into account the proximity and the timing of the offences in Charges 1 and 2, I consider that it would be fair to treat them as one single transaction, that is to take into account the total quantity of 20.1 grammes of ‘Ice’.
In respect of the 0.26 gramme of cocaine, in view of the minimal amount involved, instead of treating it as a cocktail drug and adopt the combined approach as set out by the Court of Appeal in many other cases for cocktail drugs, I consider that it would be fair and more appropriate to simply ignore this quantity of cocaine in calculating the starting point, but to add a small enhancement of the sentence because of the presence of the cocaine, that is a different kind of drug, in Charge 2.
Now, coming back to the starting point. For the quantity of ‘Ice’, 20.1 grammes of ‘Ice’, mathematically according to the tariff, the starting point should be one of 7 years and 8 months’ imprisonment according to the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691
In this case, I accept counsel’s submission that his role was that of a courier, and the mathematical starting point which is appropriate for people at the bottom of the drug hierarchy such as storekeepers and courier is appropriate. So the starting point to be adopted for the 20.1 grammes of ‘Ice’ in respect of Charges 1 and 2 is 7 years and 8 months’ imprisonment.
Then I take into account the aggravating feature. For the main aggravating feature, that is the presence of the cocaine as another kind of drug, I will add 3 months to the starting point for that matter, for the presence of the cocaine. In respect of his criminal conviction for drug related offences over the previous years, I will add one further month.
So for the aggravation of his criminal record and the presence of cocaine, I will add a total of 4 months to the starting point of 7 years and 8 months, making a starting point of 8 years’ imprisonment. This is the notional starting point for both Counts 1 and 2 together after trial.
He has pleaded guilty to the offences at an early stage and he is entitled to the full one-third discount. As I have mentioned, I will also give him a further discount for the factor of self-consumption. The total discount, taking into account his plea of guilty and the self-consumption, would be around 43 per cent. So he is sentenced after the 43 per cent discount. The ultimate sentence should be one of 4½ years, that is 54 months. So 4½ years is the imprisonment I impose for the total of the 1st and the 2nd charges.
And in respect of each of the 1st and the 2nd charge, I also impose the same sentence of 4½ years for the sentences to be served totally concurrently together. So 4½ years for Charge 1, 4½ years for Charge 2, concurrent, and the total sentence for Charges 1 and 2 is 4½ years.
I shall now come to Count 3 in respect of the theft. The defendant has two previous convictions for the offence of theft. In this particular case, the offence of theft is a totally distinct and separate offence from the drug offences in Charges 1 and 2. The additional criminality must be reflected in the overall sentence.
Counsel submitted that this is a theft by finding and there is insufficient information before me to rebut otherwise. However, I have to bear in mind that the theft of a bank card no doubt is a very serious matter because the bank card may lead to potential loss financially to the owner, even though in this case there is no information that any loss had occurred to the owner.
Bearing in mind all the circumstances, I consider that the appropriate starting point for Charge 3 should be one of 3 months. The defendant pleaded guilty to the offence at an early stage and he is entitled to a one-third discount. So the sentence to be imposed is 2 months’ imprisonment for Charge 3.
I have taken into account the separate and distinct nature of this charge and also the principle of totality. I consider that it is fair to order the whole of the sentence for Charge 3 to be served totally consecutive to the sentences in Charges 1 and 2.
So the total sentence for all three charges should be 4 years and 8 months’ imprisonment, and that is the sentence I impose for this case.