COURT: The defendant has been convicted on her own plea on one charge of trafficking in dangerous drugs.
The Particulars of Offence provides that on 13 July 2013 outside 2-8 Dundas Street, Yau Ma Tei, Kowloon in Hong Kong, the defendant unlawfully trafficked in dangerous drugs, namely 18.75 grammes of a crystalline solid containing 18.49 grammes of methamphetamine hydrochloride, commonly known as “Ice”; 12.78 grammes of a solid containing 11.87 grammes of cocaine; and 5.28 grammes of a powder containing 3.23 grammes of ketamine.
The Summary of Facts admitted by the defendant provides that at about 0115 on 13 July 2013 the police mounted a roadblock outside 2-8 Dundas Street, Yau Ma Tei, Kowloon. At about 0138 hours, a taxi JV9902 was intercepted with the defendant on board as the sole passenger. The defendant was holding, inter alia, a black handbag. She was asked to alight from the taxi for a search.
Upon search of the defendant’s handbag were found a yellow plastic bag containing a piece of tissue paper wrapping a transparent plastic bag containing 11.84 grammes of a solid containing 10.97 grammes of cocaine, and a transparent plastic bag containing four transparent plastic bags containing a total of 0.94 grammes of a solid containing 0.90 grammes of cocaine. Inside a cosmetic bag were found 14 plastic bags containing a total of 18.75 grammes of a crystalline solid containing 18.49 grammes of methamphetamine hydrochloride, and two plastic bags containing a total of 5.28 grammes of a powder containing 3.23 grammes of ketamine. When asked what they were, the defendant said they were “coke” and “Ice” for her own consumption.
The market retail value of the drugs was estimated to be around HK$25,000.
By way of personal background, the defendant is 22 years of age. She was born in Hong Kong in January 1993. She has received education up to Secondary Form 3 level in Hong Kong. At the time of her arrest the defendant was working in a nightclub. The defendant lived with her parents and her brother at a public housing estate.
The defendant has a total of six previous criminal convictions, three of which were drug related, with one being trafficking in dangerous drugs. That was in 2012, for which the defendant was sentenced to 8 months’ imprisonment.
By way of mitigation, Mr Lewis Chan submitted on behalf of the defendant that she has pleaded guilty today which shows her remorse. I am told that the defendant has been addicted to dangerous drugs since 2005, initially to ketamine and later to “Ice” and cocaine.
Mr Chan submitted that part of the drugs seized was for the defendant’s own consumption, although he was not able to state the precise quantity. The defendant accepts that the majority of the drugs were to be shared with friends free of charge,who sometimes also shared their drugs with her.
Mr Chan realistically accepts that this kind of so-called “non-commercial” trafficking does not provide a general basis for imposing a lighter sentence than would have been imposed for commercial trafficking. This is not a case of an individual who purchases a small quantity of a dangerous drug for recreational use and gives part of it to her partner or close friends to consume at a social event [see:HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 at paragraphs 48 to 51].
Mr Chan, however, maintains that a discount should be given to recognise that part of the dangerous drugsseized was for the defendant’s self-use.
The defendant has been convicted on one charge of trafficking in dangerous drugs, namely 18.75 grammes of a crystalline solid containing 18.49 grammes of methamphetamine hydrochloride (commonly known as “Ice”); 12.78 grammes of a solid containing 11.87 grammes of cocaine and 5.28 grammes of a powder containing 3.23 grammes of ketamine. The total quantity of narcotics involved is therefore 33.59 grammes.
The offence was committed on 13 July 2013, well before the Court of Appeal handed down its Judgment in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, which sets out revised tariffs for trafficking in the “Ice” drug. Therefore, regarding the “Ice” drug involved in the present case, the applicable tariffs are those set out in the case of Attorney General v Ching Kwok Hung [1991] 2 HKLR 125.
In the Ching Kwok Hung case, for trafficking inbetween 10 grammes and 70 grammes of methamphetamine hydrochloride, the proper sentence to be imposed after trial was held to be 7 to 10 years’ imprisonment.
This case involves the defendant trafficking in three kinds of dangerous drugs which were kept in separate packets. In fairness to the defendant, I intend to adopt the “combined” approach whereby the court looks at the overall quantity of drugs rather than individual parcels. In taking a global view, the court is then able to assess, realistically and fairly, the appropriate sentence.
The methodology of this “combined” approach is first to calculate the applicable sentence for the most serious drug, which is the “Ice” drug in the present case, and then adjust the sentence upwards to take into account significant quantities of the other drugs.
In the present case, I take the “Ice” drug as the base of the sentence. The quantity of “Ice” seized is 18.49 grammes. Following the guidelines in the Ching Kwok Hung case, I consider that the appropriate starting point for this quantity of “Ice” is 7 years and 5 months’ imprisonment. Making an upward adjustment to take into account the other drugs, ie, the cocaine and ketamine, I consider that the appropriate overall starting point for sentence should be 7 years and 9 months’ imprisonment.
I have tested this overall starting point using the three tests set out by the Court of Appeal in HKSAR v Chan Yuk Leong, CACC 318/2013 (Reasons for Judgment dated 8 April 2014) for checking if a sentence is manifestly excessive, namely, the “absurdity test” (paragraphs 12 to 13); the “conversion test” (paragraphs 14 to 17); and the “ratio test” (paragraphs 18 to 19).
In the present case, regarding the “absurdity test”, if the whole quantity of drugs seized (33.59 grammes) contained only the most serious drug, ie, “Ice”, the sentence would have been around 8 years and 2 months’ imprisonment.
Applying the “conversion test”, one would arrive at a sentence of around 7 years and 8 months’ imprisonment. Finally, applying the “ratio test”, one would arrive at the total of around 7 years and 4 months’ imprisonment.
In the circumstances, I consider that an overall starting point of 7 years and 9 months’ imprisonment after trial is appropriate for the present case. In coming to this view, I take into account that trafficking in a variety of drugs should be considered an aggravating feature [see:Chan Yuk Leong (supra) at paragraphs 23 to 25].
Before I consider the discount for the defendant’s guilty plea, there is one factor that I should take into account. The defendant claims in mitigation that part of the drugs were intended for her own consumption. Given that it is not disputed she is a drug addict and in light of her criminal record, I have no difficulty in accepting this claim. That being so, the defendant is entitled to some discount [see: Wong Suet Hau (supra)].
But the Court of Appeal has emphasised in various cases that the discount should not be substantial as there is also the latent risk that the drugs intended for self-consumption may be trafficked. In the present case, I believe it is clear that the defendant was a drug addict with an addiction problem. I am of the view that an appropriate discount to reflect her claim in mitigation that a portion of the drugs were intended for her own consumption is 6 months.
This brings the starting point from 7 years and 9 months’ imprisonment down to 7 years and 3 months’ imprisonment.
I shall give the defendant a full one-third discount for her guilty plea.
Can you stand up, please, defendant.
Accordingly, the defendant is sentenced to 4 years and 10 months’ imprisonment.