COURT: Defendant, you pleaded guilty to two charges of trafficking in dangerous drugs before a magistrate at the Eastern Magistracy on 2 November 2023. As a result of your plea of guilty, you were committed here to the Court of First Instance for sentence. You also admitted the Summary of Facts, which were dated 13 October 2023. Both the offences to which you committed were committed on 12 November 2022 at Sheung Yee House, Sheung Tak Estate, Tseung Kwan O.
In Charge 1, you admitted to unlawfully trafficking in 3.19 grammes of a crystalline solid containing 3.15 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’. This offence was committed outside of Room 1711 at Sheung Yee House.
In Charge 2, you admitted to unlawfully trafficking in 36.18 grammes of a crystalline solid containing 35.96 grammes of methamphetamine hydrochloride, this time in Room 1711 at Sheung Yee House.
I turn now to the facts of this case. At around 5.25 pm on 12 November 2022, whilst police officers were conducting an anti-narcotics operation on the 17th floor of Sheung Yee House, Sheung Tak Estate, you and a female were seen walking out from Room 1711, which I shall refer to hereafter as “the Flat”. You then used your keys to lock the wooden door of the Flat. Police officers approached you and the female to conduct an inquiry with you both.
Upon a body search of you, the drugs quantified in Charge 1 were was found in your right front trouser pocket. Also found from your right back trouser pocket was a mobile phone and a wallet containing cash in the sum of $13,290. You were arrested and cautioned to which you replied that the pack of ‘Ice’ was for your own consumption.
Shortly thereafter, at about 5.32 pm, on the strength of a search warrant, the police officers entered the Flat by opening the wooden door with your key voluntarily provided by you. The drugs as quantified in Charge 2 was found in the living room and in the kitchen of the Flat. Inside the living room on the top of the computer, a black sock containing nine resealable plastic bags of drugs was found on top of the computer. A wok placed on the stove in the kitchen contained the remaining drugs.
Also found in the Flat was a glass bottle with a glass tube, an orange plastic straw containing 25 millilitres of liquid containing 0.08 grammes of a solid upon drying, containing methamphetamine. Also found was an electronic scale, 100 resealable plastic bags and cash in the sum of $4,900.
You were again arrested and cautioned and in your reply you said all these drugs were for your own consumption. The paraphernalia was used to divide the drugs into bags for your own consumption.
In relation to the drugs in the wok, you said those ‘Ice’ were inferior products with impurity. You were drying them up after rinsing them with water.”
In a subsequent video-recorded interview conducted with you the following day on 13 November, you stated amongst other things that the drugs seized by the police were ‘Ice’ and you had bought them with cash from a male named ‘Ah Ming’ in the park in Sheung Tak Estate on 9 November 2022. Ah Ming then sold the drugs to you at the price of $15,000 for 28 grammes.
After purchasing the drugs, you immediately returned to the Flat with the drugs, weighed them to ensure the quantity was correct. You then divided the drugs into several plastic bags and put them into the black sock which was placed on the top of the computer in the living room. You used the glass bottle for smoking ‘Ice’.
You were a night-shift taxi driver earning approximately $20,000 a month. You have been consuming ‘Ice’ since 2017. You usually consumed ‘Ice’ twice a day for a few grammes daily.
In November 2022, the estimated street value of the drugs seized in Charge 1 was about $1,815 and in Charge 2 $20,586.
Defendant, you are 56 years of age, born in Hong Kong, education up to Form 1 in Hong Kong. You are single and lived at the flat alone. You worked as a replacement taxi driver at the time of the offence and your monthly income was about $20,000.
You have 17 previous convictions. Seven are related to dangerous drugs and three of which are similar to the present charges of trafficking in dangerous drugs. Your first conviction for dangerous drugs was in 1999. On that occasion, there were two convictions for trafficking and the last was in 2015. That was, in fact, your last conviction and you were released from prison in April 2017.
Your counsel, Mr Chan Chung, has submitted written mitigation on your behalf as well as amplified on that in his oral submissions. Mr Chan has urged the court to accept that part of the drugs were for your own consumption such that the discount should be provided for the drugs which were for your own consumption.
Mr Chan submits there is ample evidence to support the fact that you were a drug addict at the time of the offences. When the police entered the Flat, there was an apparatus for consumption of ‘Ice’ which was found with traces of methamphetamine.
You have seven previous convictions for possession of dangerous drugs of which you had been to the Drug Addiction Treatment Centre on three occasions. In addition, the urine test report of yours dated 13 January 2023 indicates that in relation to your urine specimen collected on 15 November 2022, three days after your arrest, there was a positive finding of amphetamine and cannabinoids. Moreover, according to the video-recorded interview you gave the police, you stated you consumed ‘Ice’ twice a day for a total of a few grammes.
Mr Chan accepts the most significant mitigating factor is your early plea of guilty. I received three letters in mitigation. One from yourself, one from your girlfriend and from your brother. Mr Chan rightly says this is a very unusual relationship that you had. Both yourself and your girlfriend met each other as pen pala whilst incarceration in different prisons in Hong Kong.
After a year of communication, you decided that once you are both released from your terms of imprisonment, you will be married and live in mainland China to start anew. You believe that your fiancé, who is from mainland China, would have a large influence on you as she is an educated person and just graduated with a university degree whilst she has been studying in prison. It is your belief that once you are released from this term of imprisonment, you will this time turn anew despite your previous record.
Turning now to sentence. The sentence approach to sentencing in drug trafficking cases are the ones laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and complemented in HKSAR v Lee Ming Ho [2024] HKCA 150.
The first step is to assess the gravity of the offence and identify the relevant guideline band applicable to the quantity of drugs concerned. The drugs in this case are the drugs methamphetamine hydrochloride, commonly known as ‘Ice’. The tariff case for the drug ‘Ice’ is set out in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.
The total narcotic involved in the two offences is 3.15 grammes plus 35.96 grammes, which totals 39.11 grammes of ‘Ice’. Where an amount of between 10 to 70 grammes have been trafficked, the Court of Appeal has decided that a starting point of between 7 to 11 years’ imprisonment is appropriate. The total amount here being 39.11 grammes of ‘Ice’ and by itself would arithmetically speaking attract a starting point of 8 years, 3 months’ imprisonment.
The second step is to assess the role and culpability of the defendant based on the evidence. In this case, defendant, your role was the actual packer and dealer in the drugs in the sense that you were directly selling or trafficking these drugs.
The third step is to identify where in the relevant band you come. Taking into account the third band and the guidelines, I consider than an appropriate starting point given your role in the trafficking offence would be 8 years and 6 months’ imprisonment.
The fourth step is a consideration of any aggravating factors. One such aggravating factor is the presence of previous similar criminal records. Defendant, you have three previous similar trafficking in dangerous drugs convictions. This should ordinarily attract an enhancement of your sentence. However, I will accede to your counsel’s submissions in that the last conviction for trafficking was now almost nine years ago. And that was, in fact, your last conviction to which you were released from prison in 2017 and it has now been some five years since you have committed any other offence. In addition, the first two trafficking offences to which you committed was committed an extremely long ago in 1999.
The fifth step is to consider all mitigating factors. In this case, your counsel has sought to have your sentence reduced to take into account the fact that some of the drugs were for your own consumption. He has informed the court that the drugs found in the kitchen were to be for your own consumption. According to the agreed facts, that was contained in a wok containing 12 grammes of methamphetamine hydrochloride. And in accordance to what you admitted in the Summary of Facts, after your arrest, you told the police that the ‘Ice’ in the wok were inferior products with impurity. You were drying them up after rinsing them with water.
It is not the case that where any part of the drugs possessed by a trafficker are for his own consumption, he is entitled to a discount of his sentence. As the authorities make it clear, it has to be a significant proportion in order for the trafficker to satisfy the Wong Suet Hau threshold and bring himself within the 10 to 25 percent discount rage laid down in Chow Chung Sang. Although I accept defendant you were a drug addict at the time of the offence, I do not accept that a significant proportion of the drugs were for your own consumption. This fact forms part of your background, but I do not find this fact as mitigating circumstances that persuade me to reduce the sentence any further.
In the circumstances, I do not find there to be any further mitigating or aggravating factors, save, of course, for your early plea of guilty. The most significant mitigating factor is, of course, your plea of guilty at the earliest opportunity and you will benefit from a one-third discount to your sentence. The starting point being 8 years and 6 months’ imprisonment, giving you the one-third discount, that sentence shall be reduced to 5 years and 8 months to which you shall serve.
The sixth step is to observe the overall sentence passed and ensure that it is fair, just and balanced in all the circumstances of the offence and the offender and I do so find.
Defendant, you are charged with two offences and I must sentence you separately for both offences to reflect the total sentence as I have mentioned.
Defendant, in Charge 1, you were trafficking in 3.15 grammes of ‘Ice’. That amount falls in the band of up to 10 grammes, which warrants a sentence of between 3 to 7 years’
imprisonment. I would accordingly take a starting point of 4 years’ imprisonment and discount that by one-third and reduce that term to one of 2 years and 9 months’ imprisonment to which you shall be sentenced on Charge 1.
In Charge 2, defendant, you were trafficking 35.96 grammes of ‘Ice’. The amount falls in the band of between 10 and 70 grammes, which warrants a sentence of between 3 to 7 years’ imprisonment. I would take a starting point of 8 years and 6 months’ imprisonment and after a one-third discount, reduce that term to 5 years and 8 months. Both sentences are to run concurrent to each other.
That makes your total term of imprisonment to which you shall serve of 5 years and 8 months’ imprisonment.