COURT: The defendant pleaded guilty to one charge of trafficking in a dangerous drug and one charge of possession of a dangerous drug before a magistrate on 30 May 2024.
The 1st charge alleges that on the 3rd day of September 2022, at No 214 Shanghai Street in Yau Ma Tei, he unlawfully trafficked in 40 grammes of methamphetamine hydrochloride, that is the ‘Ice’ narcotic.
The 2nd charge alleges that on the same day, at the same place, he was in possession of 3.46 grammes of ‘Ice’ narcotic.
According to the Summary of Facts to which he admitted at the time of his plea, on 3 September 2022, at about 11 pm, the police intercepted him outside No 212 of Shanghai Street. Upon search, all the drug particularised in the 1st and the 2nd charges were found in his underwear. At the same time, he was found to have cash of $1,481 and a mobile phone in his possession.
The average retail value for the whole lot of the drug in the 1st charge and the 2nd charge is about $28,283.
He now admits that at the material time he was in possession of the drug in Charge 1 for the purpose of unlawful trafficking.
The defendant is 29 years of age and at the time of the offences he was 27 years old. He is single and he has attained Form 2 education. His parents were divorced and he worked as a construction worker earning around $18,000 a month before his arrest.
He has a total of five criminal convictions, three for the offence of possession of dangerous drug since the age of 16 years and two for the offence of possession of equipment fit and intended for consuming dangerous drug.
I was told by the prosecution that at the time of the present offences he was just released on police bail for one offence of possession of dangerous drug and another offence of possession of equipment fit and intended for consuming dangerous drug.
In mitigation, counsel Mr Kelvin Lai urged this court to take into account all the circumstances of the case and to accept that his role in the present case in respect of the 1st charge was one of a courier which is at the bottom of the hierarchy of the trafficking syndicate.
Counsel pointed out that he had never been convicted of trafficking in dangerous drug before. But counsel also rightly accepted that there are aggravating features. First of all the defendant had drug-related convictions in the past. Counsel submitted a urine test report showing that after his admission to the Lai Chi Kok Reception Centre, the urine specimen collected on 6 September 2022 indicated that he tested positive for ‘Ice’ consumption.
Counsel also relied on his criminal record to urge this court to accept that he was a genuine drug abuser at the time of the offences. On the other hand, counsel accepted that the offences were committed while he was on police bail for another drug-related matter and that should be treated as an aggravating feature.
Counsel urged this court to impose a totally concurrent sentence for both charges to reflect the fact that he should not be penalised with a longer sentence than he would have received if all the ‘Ice’ in Charge 1 and Charge 2 was for trafficking.
In addition, the defendant had also written a letter to this court showing his remorse and indicated that he feels very regret for the offences committed.
In sentencing the defendant for the offence of the 1st charge, I bear in mind the approach stated in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, bearing in mind the tariff for trafficking in between 10 to 70 grammes of ‘Ice’ narcotic would attract a starting point of 7 to 11 years’ imprisonment. Mathematically, the starting point for the 40 grammes of ‘Ice’ narcotic in Charge 1 should be one of 9 years of imprisonment.
I accept that in all the circumstances of this case, the role of the defendant at the material time was one of a courier and, as such, the mathematical starting point is appropriate for people such as courier and storekeeper who are at the bottom of the trafficking hierarchy.
Bearing in mind all the circumstances and his role as a courier, I will adopt 9 years as the notional starting point after trial.
I bear in mind that for all his drug-related convictions in the past, none of them were related to trafficking in dangerous drug. Apparently he had been a drug consumer since the young age of 16 years, and I would not enhance the starting point for that matter. But, on the other hand, I bear in mind that the offence was committed when he was being released on police bail for possession of dangerous drug and possession of equipment for consumption of dangerous drug. As such, I will add 3 months to the notional starting point. Therefore the total starting point after trial should be one of 9 years and 3 months’ imprisonment.
The defendant pleaded guilty at an early stage. He is entitled to a full one-third discount, and so in respect of the 1st charge I will sentence him to 6 years and 2 months’ imprisonment. That is the sentence for the 1st charge.
In respect of the 2nd charge, the appropriate starting point before aggravation for possession of dangerous drug should be one of 12 to 18 months’ imprisonment. Bearing in mind all the circumstances of the present case, especially the small quantity of the drug involved, I consider that 12 months is the appropriate starting point for the 2nd charge.
On the facts of the case and the information before me, I have no doubt that he was a genuine drug abuser at the material time and he was also in regular employment. Bearing in mind the fact that at the same time he also pleaded guilty to the offence of trafficking in Charge 1, I would not add any further enhancement for the latent risk feature of the 2nd charge.
So for the 2nd charge the starting point will be one of 12 months’ imprisonment. On the other hand, the offence was committed when he was released on bail for possession of dangerous drug and possession of equipment, therefore I will enhance that starting point by 3 months to that of 15 months’ imprisonment.
Likewise, he is fully entitled to a one-third discount for his early plea of guilty. So, in respect of the 2nd charge, after his plea of guilty, he is sentenced to 10 months’ imprisonment and that is the sentence I will impose for the 2nd charge.
I agree with counsel that he should not be penalised to serve a longer sentence than he would have received as if all the drug in the 1st and 2nd charges were involved in trafficking. Also I bear in mind the totality principle and his overall criminality. I order that the sentence in Charge 2 to be served totally concurrent to the sentence in Charge 1.
So the sentence for both charges will also be one of 6 years and 2 months’ imprisonment.