You admitted that on 23 February 2021, near lamppost EB4811, Yu Tai Road, Sheung Shui, New Territories, you unlawfully trafficked in 75.84 grammes of a crystalline solid containing 75.74 grammes of methamphetamine hydrochloride.
The Summary of Facts which you admitted before the magistrate and have confirmed before me today can be stated as follows. In the afternoon of 23 February 2021, police laid ambush in the vicinity of Ching Hin House of Ching Ho Estate and Kai Leng Tsuen Archway in Sheung Shui, New Territories.
At about 7.30 pm that day, police officers saw you and another male walking from Ching Ho Estate, direction of Kai Leng Tsuen. You were intercepted at the archway for inquiry and searched. Upon search, found in your possession was, amongst other things, one car key, two mobile phones, cash of $730 and an electronic scale.
You were then escorted to a private car bearing the registration number UC 8469 which was about 500 metres away from where you were intercepted. You were the registered owner of this private car at the material time. This car was parked near the lamppost EB4811 at Yu Tai Road. With the car key that was seized from you, the vehicle door was opened. With your consent, a search was conducted in the vehicle.
Upon search, the drugs in the quantity as stated in the charge was found inside the vehicle. Some of the drugs was found concealed underneath a plastic cover on the left side of the steering wheel whilst some drugs were found in a cabinet next to the gear stick.
The estimated street value of the dangerous drugs seized was about $44,746.
CCTV video recording in the vicinity where your vehicle was parked captured that you were the person who parked the vehicle there in the morning of 23 February at 10.35 am. You alighted from the vehicle and left the scene about 10 minutes later. No other person was with you at the time, and no one else approached the vehicle until you were escorted back to the vehicle by the police for investigation at about 7.40 pm.
Defendant, Ms Flora Cheng, your counsel, has mitigated on your behalf today before this court. I have taken into account all that she has had to say on your behalf. She has also submitted to me written mitigation dated 8 October 2022. You are aged 39, born in Hong Kong and single. You have been educated up to Form 1 at the Hong Kong Sea School in Stanley. Prior to your arrest, you were a forklift truck driver. You live in the vicinity of the offence, that is, in Ching Hin House, Ching Ho Estate, Sheung Shui. Your parents, both retired, are living on CSSA, aged father 63, mother 68.
You have eight previous convictions. Four are similar and or related under the Dangerous Drugs Ordinance. One is an offence related to Pharmacy and Poisons Ordinance, Part 1. Your last conviction was on 28 July 2022 for an offence of burglary. I am informed by Ms Jojo Lam, public prosecutor, that this offence of burglary related to an offence committed on 19 February 2021.
Ms Cheng does not dispute that is the date of the burglary offence, and she has further informed this court that the police officers were in fact laying ambush and looking for you or, as a result, because they were investigating that particular burglary offence. So this offence -- when they intercepted you was as a result of their investigation for the burglary offence at the Kai Leng Tsuen Archway, they then brought you to your car, and this offence came to light. So this offence was committed four days after the burglary offence.
As Ms Cheng has submitted, these offences could have been brought together but they were not and you were dealt with in the District Court on 28 July and sentenced to 2 years’ imprisonment for that burglary.
Going back to your criminal convictions, your first conviction for dangerous drugs was in 2014, and in 2017, you were convicted of trafficking in dangerous drugs, for which you received 5 years 8 months’ term of imprisonment. On the same date, you were also convicted and sentenced for possession of dangerous drugs and sentenced to a term of 8 months’ imprisonment which was concurrent to the 5 years 8 months’ term.
Ms Cheng informs me that you first tasted dangerous drugs or tried dangerous drugs at the young age of 16 or 17. You then became a drug addict. You spent part of your earnings to purchase drugs to satisfy your needs. When your family members came to know about your drug dependency, they encouraged you to quit and arranged for you to return to mainland China to work for your paternal uncle in the fishing industry, and that was done in the hope that you would be separated from your undesirable friends who supplied you with drugs.
You therefore returned to mainland China at the age of 19 and worked in the fishing industry for more than 10 years. You returned to Hong Kong at the age of 30 and worked as a forklift truck operator at the Hong Kong Chek Lap Kok International Airport. However, upon your return to Hong Kong, you again mingled with your old friends and picked up the habit of taking ‘Ice’ again. You once again began to spend more of your income on ‘Ice’ to satisfy your crave for the drug.
To avoid your family members knowing that you had relapsed into taking drugs, you kept the drugs and smoking paraphernalia in your car and consumed the drugs in your own free time. You also then started trafficking in drugs to make quick money.
I am informed by Ms Cheng and I have actually read the reasons for sentence in the High Court case No. 261/2016 to which you were sentenced to 5 years 8 months’ imprisonment. The facts are similar in that the drugs were also kept in your car. At that time, Ms Flora Cheng was also your defence counsel. You pleaded guilty to that offence.
Thereafter, you committed an offence of burglary and were convicted in October 2020. You were sentenced to 20 months’ imprisonment. And for the offence committed on 21 February 2021, you were sentenced for that burglary on 28 July 2022 to 2 years’ imprisonment.
Ms Cheng contends that you committed these offences of burglary to get money to satisfy your drug needs. Ms Cheng says the greatest mitigating factor of course is your timely plea of guilty at the very first opportunity. This reflects your true remorse for your misdeeds, and you feel sorry for disappointing your family members.
In regard to sentence, Ms Cheng has rightly referred to the tariff-sentence case in trafficking in methamphetamine hydrochloride which is ‘Ice’, and the Court of Appeal laid down those guidelines in HKSAR v Tam Yi Chun. The range of sentence for trafficking between 70 and 300 grammes of ‘Ice’ is that of between 11 to 15 years’ imprisonment after trial.
In this case, defendant, you were trafficking in 75.74 grammes of ‘Ice’, and according to that guideline, that would attract a starting point of 11 years’ imprisonment.
Regarding any mitigating factors, Ms Cheng says that you did have part of the drugs, a small amount for your own consumption. It is seen that you have been a drug dependant from a very young age. She has disclosed the urine test report prepared by the Correctional Services Department which confirms that you were tested positive for amphetamine upon your remand at Lai Chi Kok Reception Centre on 26 February 2021, which shows that you were a drug dependant or at least had consumed the drug ‘Ice’.
It is clear that for a discount that should be given for self-consumption would only be accepted where there was a significant proportion of dangerous drugs for one’s own self-consumption. This was not a significant amount for your own consumption. These principles were clearly laid down in Wong Suet Hau. In those circumstances, I am not prepared to grant any discount for self-consumption.
On the other hand, this is your second offence for trafficking in dangerous drugs. The last conviction was in 2017, and it appears that since that time, as soon as you were released from imprisonment, you committed other offences almost immediately and then committed this similar offence of trafficking again.
The Court of Appeal in HKSAR v So Yat Ting, CACC 175/2019, where Zervos JA gave reasons for judgment of the court in respect of the amount of enhancement for a similar offence was discussed.
I do consider that this second offence of trafficking in dangerous drug is an aggravating factor and deserving an enhancement of the starting point. I consider an appropriate adjustment to the starting point to be one of 3 months’ imprisonment. Therefore, the notional starting point, had you been convicted after trial for this offence of trafficking, would be one of 11 years and 3 months’ imprisonment.
You have pleaded guilty at the earliest opportunity and this is a significant mitigating factor and you shall be awarded the one-third discount, and therefore that term shall be reduced to one of 7 years and 6 months’ imprisonment, to which you will be so sentenced for this offence.
You have just been sentenced for a burglary offence on 28 July 2022 to a term of 2 years’ imprisonment. That offence was committed some four days before this offence and, however, was separate and different in nature. I do, however, take into account the principle of totality when sentencing you for this offence and take into account the sentence in the burglary. And in the circumstances, I order 6 years and 6 months of this term to run consecutively to the District Court case 1111/2021, that is your burglary offence, and the remaining 1 year 6 months of this term to run concurrently.
So that would mean a total of 8 years 6 months’ imprisonment for both charges.