COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug involving 136.61 grammes of a crystalline solid containing 131.48 grammes of methamphetamine hydrochloride, commonly referred to as ‘Ice’.
Summary of Facts
At around 5 am on 10 August 2021, the defendant was being intercepted by police officers near the junction of Un Chau Street and Kweilin Street. He was holding a plastic bag, and a paper bag with a paper box inside.
Upon search, 24 plastic bags containing a total of 23.61 grammes of a crystalline solid containing 22.48 grammes of ‘Ice’ were found inside the plastic bag; 10 plastic bags containing a total of 113 grammes of a crystalline solid containing 109 grammes of ‘Ice’ were found inside the paper box.
In summary, there were a total of 136.61 grammes of a crystalline solid containing 131.48 grammes of ‘Ice’ being found. The total estimated street value was approximately HK$96,583.
One mobile phone and cash of HK$1,457 were found on the defendant. He was arrested for the offence of trafficking in a dangerous drug.
The Defendant’s background and Submission in Mitigation
The defendant is currently 30 years old and born in Hong Kong. He is a father to a 7-year-old daughter from a previous relationship with his ex-girlfriend.
The defendant was educated up to Secondary 3 level and was working as a transportation worker at the time of arrest. He has been a drug addict since he was 17 years old.
The defendant has a number of previous criminal convictions, one of which was for trafficking in dangerous drugs, for which he was sentenced to 24 months’ imprisonment. The defendant also has two previous convictions for possession of dangerous drugs in 2018 and 2021.
The defendant submitted that the ‘Ice’ in the present case was purchased in bulk for both himself and his friends, and that part of the ‘Ice’ in the present case was for self‑consumption. The purchase in bulk was said to take advantage of discount offered by suppliers and to reduce the risk of being intercepted by the police on the street.
The defendant claimed that he had a history of drug abuse since he was 17 years old. A urine test sample taken on the defendant’s admission into prison on 13 August 2021 showed positive results for amphetamine and cocaine. The defendant claimed that his normal consumption of ‘Ice’ was about 1 gramme per day, and that his portion of the ‘Ice’ in the present case was to support his drug addiction for two months, which worked out to be around 60 grammes.
The prosecution did not accept that any part of the ‘Ice’ seized in the present case were for the defendant’s own consumption. The defendant was invited to substantiate his claim by providing this court with evidence, but the defendant elected not to do so and elected not to have a Newton inquiry. This court was invited to assess the defendant’s claim of self‑consumption simply on the basis of the available evidence.
Given that the defendant has had prior drug possession convictions and that he also tested positive for ‘Ice’ and cocaine when he was admitted into prison on 13 August 2021, just several days after his arrest, I am prepared to proceed on the basis that some of the ‘Ice’ found in the present case was for his own consumption.
However, given that the volume of ‘Ice’ in the present case had a street value of HK$96,583, which was almost five times the defendant’s claim of monthly salary of 20,000 per month, there was no basis whatsoever to substantiate a claim that a significant portion of the ‘Ice’ was for the defendant’s self‑consumption. I will proceed to sentence on the basis that only a small portion of the ‘Ice’ in the present case was for the defendant’s own consumption.
Consideration of sentence
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I therefore follow the six-step sentencing approach as set out in that case.
The sentencing tariff for trafficking in ‘Ice’ is provided for in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For quantities of 70 grammes to 300 grammes, the sentencing band is 11 to 15 years’ imprisonment.
On the evidence, there is little to suggest that the defendant had any significant role beyond the culpability of an ordinary courier. The defendant submitted that he was a social trafficker as opposed to someone trafficking for commercial gain, but that is not a basis for departing from the mathematically calculated starting point. I therefore assess his culpability as with any other courier.
The starting point for trafficking 131.48 grammes of ‘Ice’ by a pure arithmetic calculation is 144 months, that is 12 years’ imprisonment after rounding down. I cannot see any basis for departing from it.
The next step requires the court to consider whether there are any aggravating factors which might require me to enhance this starting point. The defendant has some previous criminal convictions but only one of them involved trafficking in dangerous drugs. In those circumstances, I will not enhance the sentence on this basis.
The main mitigating factor in this case is the defendant’s guilty plea and he is entitled to a one-third discount off the starting point. I have also conducted a hearing in chambers and received certain information.
Having considered the observations of the Court of Appeal in HKSAR v Lo Sze Tung Stephanie [2018] HKCA 421 and HKSAR v Ng Shek Yu, CACC 178/2000, I will increase the sentencing discount from one-third to 45 per cent. Applying that discount will bring the defendant’s sentence down to 6 years and 7 months’ imprisonment after rounding down.
In respect of the defendant’s claim of self-consumption, in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 at paragraph 19, the Court of Appeal stated that when all or part of the drugs were intended for self-consumption, the defendant should be given a discount of somewhere between 10 per cent and 25 per cent from the basic starting point. This principle applies when a court is satisfied that a prominent or a significant proportion of the drugs were for the defendant’s own consumption. Where the court is satisfied that only part of the drugs were for self‑consumption rather than a significant part, the court still has a discretion to decide whether the defendant should be given any reduction in sentence for that reason and the extent of it, according to the individual circumstances of each case - see HKSAR v Kong Tat Lung [2017] 6 HKC 448 at paragraphs 58 and 69.
In the circumstances of the present case, I am prepared to afford the defendant a further 2 months’ reduction in the sentence to reflect this factor.
There are no additional considerations that are relevant insofar as this case is concerned.
I sentence you to a term of 6 years and 5 months’ imprisonment.