COURT: The defendant pleaded guilty for one count of trafficking in a dangerous drug, namely, 12.59 grammes of a crystalline solid containing 11.21 grammes of methamphetamine hydrochloride, which I will simply refer to as ‘Ice’.
At around 6.35 pm on 16 January 2018, the defendant boarded a taxi driven by PW1, and the defendant asked PW1 to drive him to Tin Ping Estate. Upon arrival, the defendant alighted and asked PW1 to wait for his return without paying the taxi fare. At around 6.40 pm, the police were patrolling and spotted the defendant alighting from the taxi and entered Tin Ping Estate Mall. The defendant was located near Tin Ping Estate Bus Terminal, acting suspiciously. The defendant was brought to a disabled toilet nearby for a body search.
In the right front pocket of the defendant’s trousers, the police found a resealable plastic bag containing 6.64 grammes of a crystalline solid containing 5.91 grammes of ‘Ice’.
The defendant was then escorted back to the taxi, and the police further searched and found the following in the pocket of the left rear door of the taxi:
(1) a white bag containing three resealable plastic bags, containing in total 4.53 grammes of a crystalline solid containing 3.99 grammes of ‘Ice’; and
(2) a purple bag containing a transparent resealable plastic bag, containing in total 1.42 grammes of a crystalline solid containing 1.31 grammes of ‘Ice’.
Under caution, the defendant claimed that the ‘Ice’ was for his own consumption.
The ‘Ice’ in question had a street value of $7,025.
The Defendant’s Background
The defendant is now 35 years old. He was born in Hong Kong, and received formal education up to Form 3. After leaving school, he had unstable employment in the past until 2021, when he started working full-time as a plumber.
The defendant is single, and lived with his parents and maternal grandmother in a public housing unit. He has a son, who is now about 10 years old, from a previous relationship. Regarding his health condition, the defendant was previously on medication for thyrotoxicosis, but had not returned for follow-up treatments since March 2022.
The defendant has previous criminal records, which included previous convictions for trafficking in dangerous drug, arising out of the same sentencing occasion, for which the defendant was sentenced to a Drug Addiction Treatment Centre in 2011. I will just refer to the Drug Addiction Treatment Center (“DATC”) which was around 13 years ago. The defendant also has another previous conviction of possessing a dangerous drug in February 2016, for which he was also sentenced to DATC. The present offence was committed in January 2018, which would not have been long after his release from his detention at DATC.
Two psychiatric reports in respect of the defendant, both dated 20 January 2023, were obtained by the lower court. The defendant claimed that he started taking methamphetamine once a week since his teenage years under peer influence. He remained abstinent from using the drug in the two years prior to the date of that report (January 2023) until several weeks prior to it. The urine test conducted revealed that the defendant’s urine toxicology to be
positive for amphetamine. The defendant’s mental state remains stable during his remand at Siu Lam Psychiatric Centre.
In mitigation, the defendant invited this court to consider that a small proportion of the ‘Ice’ found in possession of the defendant was for his own use. Given that the defendant was clearly a drug addict, and that he also tested positive for amphetamine when he was admitted to Siu Lam Psychiatric Centre in January 2023.
The prosecution fairly does not dispute that a “small” portion of the ‘Ice’ found in the present case was for the defendant’s own consumption. I therefore proceed to sentence on that basis.
Consideration of sentence
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] HKCA 150. I therefore follow the six-step sentencing approach set out in Yusuph.
The first step is to identify the relevant guideline band or bracket applicable to the quantity of drug concerned. The sentencing tariffs for trafficking in ‘Ice’ are provided for in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For quantities of 10 grammes to 70 grammes, the sentencing band is 7 to 11 years’ imprisonment. The mathematically calculated starting point in this case for 11.21 grammes of ‘Ice’ would be 7 years and 1 month’s imprisonment.
On the evidence, there is nothing to suggest the defendant had any further role beyond the culpability of an ordinary courier. I therefore assess his culpability on that basis. I do not see any basis for departing from the mathematically calculated starting point.
For the defendant’s past history of drug-related offence, particularly the previous convictions of drug trafficking, I will enhance the starting point by 2 months.
The main mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount of the starting point after enhancement, which brings his sentence down to 4 years and 10 months’ imprisonment.
In respect of the defendant’s claim of self-consumption, where the court is satisfied that only a small part of the drugs were for self-consumption rather than a significant part, the court still has the discretion to decide whether the defendant should be given any reduction in sentence for
that reason and the extent of it, according to the individual circumstances of each case - See HKSAR v Kong Tat Lung [2017] 6 HKC 448 at paragraphs 58 and 69.
In the circumstances of the present case, I am prepared to afford the defendant a further 2 months’ reduction in the sentence to reflect the spectrum.
Defendant, I sentence you to 4 years and 8 months’ imprisonment.