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DCCC 951/2017
[2018] HKDC 880
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 951 OF 2017
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| Present: |
Ms Choice Choi, Counsel on fiat, for HKSAR |
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Mr Fu Chong Sang, instructed by Eli K K Tsui & Co, assigned
by the Director of Legal Aid, for the defendant |
| Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
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REASONS FOR SENTENCE
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1. Defendant pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance and is so convicted.
2. The agreed summary of facts reveal that at the time of arrest, defendant was found in a deserted premises with two other men. He was seen putting down a metal plate which contained 11.4 grammes of methamphetamine hydrochloride contained in a big resealable plastic bag with other resealable plastic bags in it, electronic scale and one big transparent resealable plastic bag containing large numbers of small empty transparent resealable plastic bags.
3. Street value of the drug was about $5,061.60.
4. Under caution, defendant admitted that the “Ice” was for his own consumption.
5. Further, in the video recorded interview, defendant admitted under caution that the “Ice” belonged to him and that “Ice” is a dangerous drug and that he had worked as a decoration worker and a cleaner before, but at the time of arrest he was unemployed.
6. Defendant admitted possessing the dangerous drug for the purpose of trafficking.
Criminal record
7. Defendant has four previous possession of dangerous drug record, dating back to year 2000, 2014, 2016 and 2017. He was sent to prison for six weeks on 27 April 2017 in respect of the last conviction.
Mitigation
8. Defendant is now aged 46.
9. He came to Hong Kong when he was 20-odd years old and he had received education up to junior secondary school in Mainland. He has been a drug addict since year 2000. He is now married with a daughter and a son. His wife is a housewife and he is financially supporting his family. His son has learning impairment.
10. Defendant says that part of the drugs was for his own consumption, but he is not alleging that a significant portion of it is for his own consumption. On the day in question, his two other friends wanted to come and join him to consume the drugs, he said.
11. The prosecution contends that at the place of arrest there is no paraphernalia for taking the drugs.
12. This court, however, accepts the contention of defence counsel that in order to consume “Ice” you do not really need much tools or equipment.
13. I also have no doubt that part of the drug was for the defendant’s own consumption, though not a significant portion. I am willing to accept 10 per cent of the “Ice” seized was for his own consumption and that the rest, ie 10.26 grammes, was for trafficking purpose.
14. The presence of the electronic scale, coupled with the presence of large numbers of transparent resealable plastic bags, in a deserted premises allows the weighing of the “Ice” and the packaging of the “Ice” and supports the inference of trafficking.
15. The place where defendant was arrested was not defendant’s residence but was where defendant frequented.
16. In HKSAR v Tam Yi Chun, CACC 524/2011, Court of Appeal recast the sentencing guidelines for trafficking in “Ice” after trial. For trafficking in “Ice” up to 10 grammes, the tariff is 3 to 7 years’ imprisonment (paragraph 34 of the judgment) and that for trafficking in 10 to 70 grammes of “Ice”, the tariff is 7 to 10 years.
17. In the case here, the appropriate sentencing starting point for trafficking in 11.4 grammes of “Ice” (of which 1.14 gramme was for defendant’s own consumption), the sentencing starting point in my view should remain as 7 years.
18. Despite diligent mitigation by defence counsel, personal background of the defendant does not afford him sentencing discount when faced with conviction of trafficking in a dangerous drug.
19. The only useful mitigating factor is his timely guilty plea, of which he is given full one-third sentencing discount.
20. Accordingly, defendant is sentenced to 4 years and 8 months’ imprisonment.
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