CRIMINAL CASE NO. 96 OF 2010
COURT: On 2 September this year, the defendant pleaded not guilty to two counts, namely, Counts 1 and 2 on the indictment, both being counts of trafficking in dangerous drugs, albeit, in respect of Count 2, he indicated that he was willing to plead guilty to simple possession as opposed to trafficking in the quantity of drugs particularised in that count.
At the conclusion of a voir dire which was conducted at the commencement of this trial, I ruled that two cautioned statements containing admissions made by the defendant were admissible into evidence.
On 6 September of this year, the defendant, through his counsel, asked to be re-arraigned on the original indictment. On that day, he pleaded guilty to Count 1, a charge of trafficking in dangerous drugs, not guilty to Count 2, a charge of trafficking in dangerous drugs, but he reaffirmed his willingness to plead guilty to simple possession of dangerous drugs in respect of the drugs particularised in that count. Those pleas were acceptable to the prosecution in satisfaction of the indictment.
Today, a Summary of Facts in support of those charges and the pleas accepted has been read and admitted by the defendant.
The circumstances which gave rise to the 1st count are somewhat unusual. The defendant is charged with trafficking in dangerous drugs together with one ‘Ah Dee’. The amount of the drugs is 11.02 grammes of methamphetamine hydrochloride, a drug which is commonly referred to as “Ice”. The particulars of that count allege that, on or about 9 March 2009, at Room 2904, Mei Tai House, Fu Tai Estate, which is located at No. 9 Tuen Kwai Road in Tuen Mun, he trafficked in that quantity of methamphetamine hydrochloride together with Ah Dee.
What the Summary of Facts revealed was the following. That evening, police officers were conducting surveillance in the vicinity of the premises referred to in the indictment. At about 5 am, a man, later determined to be Lo Wai-lok, came out of Room 2904. He was detained and found to be in possession of six transparent plastic bags, four of which contained what they suspected to be dangerous drugs. Subsequent analysis confirmed that suspicion and established that there was 11.32 grammes of a crystalline solid containing 11.02 grammes of methamphetamine hydrochloride.
Lo and the police officers went back to Room 2904. There, together with other people, they found the defendant. He had keys to the premises and a quantity of methamphetamine hydrochloride which amounted to 1.36 grammes in total.
In subsequent interviews, which were admitted into evidence at the conclusion of the voir dire, the defendant admitted that, earlier that day, Lo Wai-lok had contacted him, wanting to obtain a supply of methamphetamine hydrochloride. He arranged for Lo to come to his house that evening to purchase dangerous drugs from his own supplier, the person described in the particulars of that count as ‘Ah Dee’.
In the interviews and in the Admitted Facts, it was the defendant’s case at all times that the dangerous drugs which were found in Room 2904, which are particularised in Count 2 on the indictment, were possessed by him for his own consumption.
It is accepted that the defendant, by arranging for Ah Dee and Lo Wai-lok to attend his premises to transact the sale of dangerous drugs, was undoubtedly aiding and abetting the sale of dangerous drugs by Ah Dee to Lo Wai-lok. It is equally apparent that he clearly intended to do this. Without his participation, there would have been no trafficking.
The issue that has concerned me in this matter is what then is the proper basis for sentencing in respect of the trafficking in dangerous drugs count. It is apparent from the admissions contained in the cautioned statements and from the Summary of Facts that he did not know (1) what quantity of dangerous drugs Lo Wai-lok had purchased from Ah Dee; and (2) what price Lo Wai-lok had paid to Ah Dee for those dangerous drugs. I pose the question, should he then be subject to the application of the tariff guidelines?
The sentencing guidelines for trafficking in methamphetamine hydrochloride were laid down in 1991 by the Court of Appeal in The Attorney General v Ching Kwok Hung which is reported in [1991] 2 HKLR at 125. Had the defendant been trafficking in the quantity of methamphetamine hydrochloride which was sold by Ah Dee to Lo Wai-lok, a starting point for sentence after trial of 7 years’ imprisonment would have been appropriate according to the Court of Appeal guidelines.
In the present case, I am satisfied that I am not bound to apply that recommendation to Count 1. This is not a case of a defendant engaging in actual drug trafficking as a principal and deliberately, or otherwise, not establishing the quantity of drugs he or she is delivering on behalf of another. This is a situation where the defendant, himself an addict, is facilitating the purchase of dangerous drugs by his friend, also, presumably, an addict and also, presumably, for the purposes of his own consumption.
It is trite to say that all trafficking in dangerous drugs, either as a principal or as a secondary party, is a very serious offence. That much is apparent from the guidelines for trafficking in this particular drug in Ching Kwok Hung where the Court of Appeal has indicated that, for trafficking in amounts up to 12 grammes of methamphetamine hydrochloride, the range for sentencing commences at 3 years and concludes at 7 years.
In the unique circumstances of this case, I consider that the appropriate starting point for sentence, after trial, would be 3 years’ imprisonment. This is on the basis that whilst it is not possible to determine that the defendant knew the quantity of drugs that were being trafficked, I am prepared to assume that the quantity would have been sufficient for the consumption by the purchaser and not for the purposes of ongoing trafficking.
As to the 2nd count, I am satisfied that the appropriate sentence after trial for his possession of this quantity of methamphetamine hydrochloride would be a period of imprisonment of 12 months. The defendant has at all times indicated his willingness to plead guilty to simple possession of dangerous drugs in respect of the 2nd count on the indictment, in which case he is entitled, and must receive, a full one-third discount for that offer.
That being the case, the appropriate sentence on Count 2 is one of 8 months’ imprisonment.
In so far as Count 1 is concerned, the defendant’s plea of guilty came after a voir dire which took one and a half days of the court time. I am satisfied on the basis of the current authorities that, whilst he is not entitled to the full one-third discount for his plea of guilty, that in all of the circumstances, a discount of 25 per cent from the starting point of 3 years is appropriate.
That being the case, the sentence on Count 1 is one of 27 months’ imprisonment. The sentence on Count 2 is one of 8 months’ imprisonment.
Bearing in mind the circumstances of the commission of both offences and the principle of totality, I intend to order that the whole of the sentence on Count 2 be served concurrent to the sentence on Count 1.
In the end result, the defendant is sentenced to a term of imprisonment of 27 months.