This plea was entered before Eastern Magistracy on 30 May 2022 and you were committed to the Court of First Instance for sentence.
The facts of this case are straightforward and the defendant was seen between Lai Ming House and Shun Ming House acting suspiciously at about 4.30 pm that afternoon. A couple of minutes later, he was intercepted near staircase No. 1 outside Shun Ming House by police officers. It transpired he lived upstairs on the 3rd floor. He was stopped and searched and a plastic bag was found in his cross-shoulder bag containing two resealable plastic bags containing the drugs of this charge.
He was arrested at the scene for trafficking in a dangerous drug and under caution admitted he had just picked up the plastic bag of drugs from a cardboard collection centre nearby. The defendant was then taken upstairs and his home searched, nothing suspicious was found. The police also examined his mobile phone and found no suspicious information or conversations in it.
Later, a video-recorded interview was conducted and the defendant told the police that he was working as a logistics worker and that the drugs found in his bag he was carrying was ‘Ice’. He himself was a drug addict and consumed about 0.3 grammes of ‘Ice’ on a daily basis. He would not consume ‘Ice’ inside his home, but on a staircase of his building. He said he walked past that afternoon of his arrest, saw the drugs on the ground and picked them up.
The defendant is not a man with a clear record. He was convicted of trafficking in dangerous drugs in 2010 and served a 4 year 6 months term of imprisonment. In October 2018, he was convicted of possession of dangerous drugs and sentenced to a Drug Addiction Treatment Centre order. He was discharged from that treatment centre on 9 December 2020, just over four months before his arrest for this offence.
Mr Chan has said all he can say on behalf of the defendant in mitigation. I received written submissions in advance, which does expand on his background. The defendant is 33 years old, single and living with his mother and siblings. At the time of his arrest, he was earning about $15,000 each month and would give his mother money for family expenses. He had been a drug abuser since he was 18 years old and at the time of his arrest would consume 0.3 grammes of ‘Ice’ every day. His best mitigation is his plea of guilty at the earliest opportunity.
Defendant had to submit to a urine test upon his remand after his arrest, conducted by the Correctional Services Department and this sentence was adjourned to await the result, which was positive for amphetamine.
As part of mitigation, Mr Chan submits that some of the drugs found on the defendant were for his own consumption. He calculates that the defendant would himself consume about 9 grammes a month and suggests that that amount from the 55.9 grammes found is about 16 per cent. He submits 16 per cent is a significant proportion of the total amount.
The prosecution does not challenge the fact that he is a drug addict but does challenge the fact that a significant proportion of the drugs were for self-consumption and therefore a further discount should be considered. The prosecution also submits that the latent risk principle should be taken into account.
Trafficking Guidelines
The sentencing guidelines in ‘Ice’ is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and the starting point for trafficking between 10 to 70 grammes of ‘Ice’ is 7 to 10 years’ imprisonment. Therefore, trafficking in 40.5 grammes of ‘Ice’ in this case would mathematically attract a starting point of 9 years’ imprisonment.
I have considered the recent Court of Appeal case of HKSAR v Herry Jane Yusuph, CACC 93/2019 and the six-step approach in sentencing drug trafficking offences. I accept that this defendant is a drug mule or a courier. There is no evidence to suggest otherwise. Therefore, the approach is to consider the quantity of drugs and the tariff guidelines to determine a starting point. Here, I determine that starting point to be 9 years’ imprisonment.
Discount on Self-consumption
The question to consider is whether any of the ‘Ice’ was for the defendant’s own use and if that proportion was significant. I must be satisfied and what must be proved to my satisfaction is that a significant proportion of the drugs was for self-consumption. I do not doubt the defendant is or was at that time a drug addict, but that does not automatically mean that any of the ‘Ice’ in the two bags was for his own consumption.
The Court of Appeal decision of HKSAR v Wong Suet Hau and Another [2002] 1 HKLRD 69 sets out the principles for a sentencing court when considering the issue of self-consumption. I have considered in particular paragraph 34 of that authority.
Mr Chan points out the following points to support his claim. These include the quantity of the drugs and the fact they were wrapped in two packets as opposed to many small plastic bags ready for sale. The defendant was intercepted on the ground floor of his home, not far from home.
He has previous drug-related convictions and been recently unsuccessfully treated at a treatment centre. He is able to financially pay for drugs and, lastly, his urine test upon remand showed the presence of amphetamine. All of these are relevant to this mitigation.
I have also considered HKSAR v Choi Chun Wo, CACC 273/2017. The Court of Appeal has there made it very clear that a defendant is only entitled to a discount for self-consumption if the judge finds that all or a significant proportion of the drugs were to be consumed by that defendant. A significant proportion was said in Wong Suet Hau to be a proportion that would make a difference to the sentence.
I have considered the factors relied on by the defendant to put forward this mitigation and I find it just enough to support a claim of self-consumption. I am satisfied that a proportion of the drugs would have been consumed by the defendant, but not a significant proportion. I am nevertheless persuaded to slightly adjust the starting point by 3 months.
This discount is not anymore significant because simple possession of a dangerous drug in itself is an offence which would call for a term of imprisonment. There is always the latent risk that all of it would have been sold for a profit if the opportunity arose rather than some kept for self-consumption.
Having considered all mitigation, facts of the case and the tariff guidelines, the starting point as I have said above is 9 years’ imprisonment, which I will reduce to 8 years and 9 months for the mitigation of self-consumption. The defendant pleaded guilty at the earliest opportunity and is entitled to the full discount of one-third.
Accordingly, after that discount is applied, I sentence the defendant to 5 years and 10 months’ imprisonment.
Can I ask the defendant do you understand the sentence?
ACCUSED: Yes.