COURT: The defendant faced one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
Summary of Facts
On 18 June 2021, police officers mounted an anti-narcotics operation at Block O, 1st Floor, Kwan Tak Building in Yuen Long and raided this unit in execution of a search warrant. The defendant and another person were trying to flee via the back door. Both were intercepted and nothing incriminating were found in their possession. However, the following items had been found on the bedside table inside the unit:
(1) 1 Resealable plastic bag containing a total of 20.9 grammes of a solid containing 17 grammes of cocaine;
(2) 13 resealable plastic bags containing a total of 8.30 grammes of a crystalline solid containing 7.87 grammes of methamphetamine hydrochloride;
(3) 40 unused transparent resealable plastic bags; and
(4) an electronic scale.
So the defendant and this other person were both arrested for trafficking in dangerous drugs respectively. The unit in question is about 80 square feet in size and is one of five cubicles within a residential flat. The whole flat is about 700 square feet. This is the one in Block O, 1st Floor, Kwan Tak Building. So the unit was let to the defendant since January 2021.
Upon arrest, the defendant under caution stated that all the dangerous drugs belonged to him for trafficking purposes for money and a video-recorded interview was conducted with the defendant. The defendant under caution admitted that all the dangerous drugs and the packing material seized belonged to him. He stated that the other man was his friend who had no knowledge of the drugs and did not possess the keys of the unit. The defendant claimed he purchased the drugs from a male from Kowloon and he repacked the drugs at the unit for sale.
The defendant refused to provide the source of the relevant dangerous drugs. He admitted that he had knowledge and ownership of the drugs seized. And the defendant admitted before the magistrate that he trafficked the dangerous drugs found in the unit.
Background
According to the antecedents statement, the defendant was born in Hong Kong in 1969. He is not a man with a clear record. He appeared in court on 20 occasions and had been convicted of offences including assault, indecent assault, blackmail, robbery and theft. He had 13 previous drug-related offences. This is the first time the defendant is convicted of trafficking in dangerous drugs.
The defendant claimed to have received education up to Form 3 level and worked as a chef and decoration worker since quitting school, earning about $10,000 per month.
In mitigation, defence counsel Ms Liza Li submitted that the defendant had been a drug addict for about 20 years. He took ‘Ice’ and cocaine regularly. At the time of the offence, he was working as a relief dim sum worker and he did not have any fixed income. In order to feed his addiction, he committed the present offence by selling part of the drugs for a profit.
Ms Li submitted that the defendant was remorseful and cooperated with the police upon arrest. After referring to sentencing guideline cases in relation to ‘Ice’ and cocaine, Ms Li referred the court to various Court of Appeal cases including the case of Ko Ka Hing and Yip Wai Yin and submitted the combined approach would be more appropriate in this case. She did the sum on the three tests, the absurdity test, conversion test and ratio test which shows the following result, 8 years, 7 years 3 months, and 6 years 8 months.
Ms Li acknowledged that trafficking two types of drugs amounts to an aggravating factor and that the defendant’s role was more serious and he was directly involved in the selling of drugs, now that is referring to the case of Herry Jane Yusuph.
Nevertheless, Ms Li urged this court to consider the following, that the amount of dangerous drugs were relatively small, the defendant acted alone, and the scale of operation was small and unsophisticated. Ms Li further submitted that the defendant only had previous convictions of possession of dangerous drugs with no previous trafficking convictions. Urine test conducted by the CSD also confirmed that the defendant was an abuser of ‘Ice’ and cocaine.
Ms Li also acknowledged that in general no discount would be given to a defendant unless the amount of drugs for self-use was a significant proportion of the total amount of drugs in question.
The defendant frankly admitted that he was unable to specify how much of the dangerous drugs in question was for his own personal use as it would depend on how much and how fast he could sell the drugs. Ms Li urged this Court to exercise discretion and give the defendant some discount.
Trafficking in dangerous drugs is a serious offence. A person convicted of this offence on indictment is liable to fine of $5 million and to imprisonment for life. The defendant is convicted of trafficking two different kinds of dangerous drugs. With the trafficking of more than one kind of drugs, there were two sentencing approach open to the sentencing judge, it is either the individual approach and the combined approach.
I will look at the appropriate starting point of each drug before deciding which approach is better, bearing in mind that no matter which approach is adopted, it is the overall sentence that is important.
Starting point for cocaine
The guideline is Lau Tak Ming and the amount of cocaine involved here is 17 grammes, which falls into the band of 10 to 50 grammes of cocaine with a starting point between 5 to 8 years’ imprisonment. So the starting point would be about 5 years and 6 months.
Starting point for ‘Ice’
For the trafficking of ‘Ice’, the sentence guideline in Tam Yi Chun is applicable. The ‘Ice’ involved here amounts to 7.87 grammes, which falls into the band of up to 10 grammes with a starting point of 3 to 7 years. So the starting point would be around 6 years and 2 months. I am of the view that a combined approach using cocaine as the base is appropriate in this case as the potency of both drugs are similar but the quantity of cocaine was more.
Now, I am grateful to counsel for preparing the three tests for my consideration, that is the absurdity test, conversion test, and the ratio test. In coming to my decision in relation to the appropriate starting point, apart from the outcome of the three tests, I also considered the role played by the defendant. As properly submitted by Ms Li, the defendant was directly involved in the selling of dangerous drugs to others. However I do bear in mind, as submitted by Ms Li, that the defendant acted alone and the scale of operation was neither big nor sophisticated.
Having considered all the circumstances of this case, I am of the view that a starting point of 7 years and 6 months is appropriate.
The defendant pleaded guilty at the earliest available opportunity so he is entitled to the full one-third discount. Although the defendant was tested positive for both ‘Ice’ and cocaine when he was remanded, since he was not able to say a significant amount of the drugs were planned for his own consumption, I do not think it proper to give him any discount on self-consumption particularly when the defendant frankly admitted that whether any dangerous drug would have been left for his self-consumption would depend on how much and how fast he could sell the dangerous drugs in question.
So the actual sentence for the offence of trafficking in dangerous drugs, the defendant is sentenced to 5 years’ imprisonment.