Background and the Facts
On 23 May 2014, the defendant pleaded guilty in the Eastern Magistrates’ Courts to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He was committed to this court for sentence.
This morning, the defendant confirmed his plea and his acceptance of the Summary of Facts.
Briefly, the defendant was stopped at the Lo Wu Control Point on his arrival from the Mainland on 19 September 2013. Upon search, a cotton bag containing the drug particularised in the count, that is, 99.08 grammes of a crystalline solid containing 98.6 grammes of methamphetamine hydrochloride, was found in the inner chest pocket of the defendant’s jacket.
When questioned subsequently during a video-recorded interview, the defendant said that he was unemployed and he claimed that he had bought the drug for smoking with his friends. The estimated street value of the drug was about HK$42,000.
The Defendant’s Background and Mitigation
The defendant is aged 54 and is divorced with one daughter. He was educated up to secondary level. He was born in the Mainland but moved to live in Hong Kong in 1980. At the time of his arrest, the defendant was unemployed but was said to have a part-time job earning about HK$10,000 per month. The defendant reportedly had no fixed abode in Hong Kong but was living with his brother in the Mainland.
The defendant has been before the court on 16 previous occasions with a total of 26 convictions. Most of those were theft offences. The defendant, however, had two possession of a dangerous drug records and one possession of pipe or equipment fit for smoking a dangerous drug record, in respect of which he was sentenced in 1988 and 1991 respectively.
In mitigation, it was said that the defendant is a drug addict himself and the drug he took from the Mainland on this occasion would be for his own consumption as well as for sharing with his friends.
I have indicated to Mr Cheung, acting for the defendant, that given the following reasons, I do not accept that any significant amount of the drug, which would affect the sentence to be imposed in this case, was for the defendant’s own consumption:
1. The defendant was unemployed at the time, at the most having a part-time job earning about $10,000 per month. In other words, he did not have the financial means to have any significant amount of the drug for his own consumption.
2. According to Mr Cheung, the defendant’s daily consumption of "Ice" would be about 1 gramme per day. There was no reason, therefore, for the defendant to carry almost 100 grammes of "Ice" on one single occasion across the border for his own consumption.
3. Mr Cheung informed the court that the defendant’s part-time job was to take parallel goods between Hong Kong and the Mainland. In other words, the defendant would have plenty of opportunities to bring the drug for his own consumption if he so wished. Again, there was no reason for him to bring in this lot of drug in one go merely for his own consumption on this occasion.
4. Even if the defendant shared the drug with his friends, that was trafficking.
All in all, I have concluded that the claim of the defendant that the drug was for his own consumption has not been made out and I do not accept that there was any significant amount of the drug which would affect sentence in this case that was for the defendant’s own consumption. In any event, possession of a dangerous drug itself will attract a penalty. In other words, there is not much difference to be made to the sentence in this case.
Mr Cheung has informed the court that no evidence will be called and the defendant does not seek to further substantiate that claim of having the drug for his own consumption.
The Sentence
The tariffs for trafficking in "Ice" were laid down in AG v Ching Kwok Hung [1991] 2 HKLR 125 and corrected in HKSAR v Capitania, CACC 28/2004, 11 August 2004, unreported. For trafficking between 70 and 300 grammes of "Ice", a term of 10 to 14 years’ imprisonment is called for. Recently, the above guideline was revised to 11 to 15 years of imprisonment by the Court of Appeal in the case of HKSAR v Tam Yi Chun, CACC 524/2011, 9 June 2014, unreported.
However, as the new guidelines are only applicable to offences committed after the date of the delivery of the judgment, I will follow the old guidelines in this case.
Having considered the amount of "Ice" involved and the facts of this case, I am going to adopt a starting point of 10 years and 3 months. Moreover, for the fact that the defendant had brought the drug into Hong Kong from the Mainland, I am going to further increase the starting point to one of 10½ years in order to take account of this aggravating factor.
The defendant pleaded guilty and he will receive a one-third reduction for that. In this case, other than his plea, there is nothing which would call for any further reduction.
The defendant is therefore to serve a term of 7 years’ imprisonment for this offence.