COURT: The defendant pleaded guilty before a magistrate of one charge of trafficking in a dangerous drug and was committed to the Court of First Instance for sentence. Today he pleaded guilty before me and was convicted of the charge.
In sentencing, I have considered the whole circumstances of the case including its nature and facts, in particular the type and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on his behalf.
The facts of the case may be summarised as follows. In the morning on 29 April 2013, the defendant was intercepted by police officers at a staircase of a building. During investigation, he produced from the waistband a plastic bag wrapped with tissue paper. Inside the plastic bag were eight plastic bags containing "ice". The total quantity was 16.17 grammes of a crystallised solid containing 15.85 grammes of methamphetamine hydrochloride. Under caution, the defendant admitted that he was intending to sell the dangerous drug which he knew was "ice".
The defendant is 44 years old. He had attended form 3 education and was unemployed at the time of arrest. He was not a first time offender, indeed, he had committed dangerous drug related offences before. In 1994 he was convicted of the offence of possession of dangerous drug. He was convicted of the same offence in 2006. In 2007 he committed the even more serious offence of trafficking in dangerous drugs and was sentenced to 8 1/2 years’ imprisonment. He has also committed an offence of obtaining property by deception and was in 2004 sentenced to 4 months’ imprisonment, suspended for 18 months.
Learned defence counsel, Ms Chong, informed the court in some details of the background of the defendant. The court was told that after the defendant had finished his education, he worked as a transportation worker. Later he started his own business, operating in turn a hair salon and a news stand. Both business operations failed and the defendant faced a financial problem. In such circumstances, the defendant started to abuse drugs and ended up with two convictions in possession of dangerous drug.
After that, he managed to turn over a new leaf. He engaged in casual work and got married. He was able to stay away from trouble for about 10 years until his wife deserted him in 2004 without any reason. He started to abuse drugs again and was in 2006 convicted of the offence of possession of dangerous drug. During that time he came to know a Thai lady who later gave birth to his son. Their relationship was good, but the defendant was having a financial burden in looking after the Thai lady and their son. Stupidly, he engaged in trafficking and was convicted in 2007 for the offence of trafficking in dangerous drug. He was sentenced to an imprisonment term of 8 1/2 years. Upon his discharge, he committed the same offence in the urge to earn money to arrange for an early reunion of the family. Owing to his low education standard and his criminal conviction record, he was only able to find a job as casual worker, earning about $3,000 a month.
Ms Chong also informed the court that the defendant was at the material time still consuming dangerous drug and he intended to save around 2 grammes of the dangerous drug for his own consumption. She asked the court to accept this assertion in the light of the previous conviction in possession of dangerous drug and the packaging of the drug in question. She also stressed that the defendant is now remorseful. She highlighted the fact that the defendant fully cooperated with the police at the search and made frank admission, he had also pleaded guilty at the earliest opportunity. The defendant still has the support of his family. His mother, who is more than 70 years old, and his elder sister are in court to show their support.
The Court of Appeal held in AG v Ching Kwok Hung [1991] 2 HKLR 125 that in a case of trafficking in "ice" where the narcotic content was between 10 to 70 grammes, the sentence should range from 7 years to 10 years’ imprisonment. I see no reason in the present case to depart from the tariff.
I have indicated that having regard to the whole circumstances, in particular that the defendant had been in custody for more than five years and it was only slightly more than two months after his discharge that he committed the present offence, and also the value of the drug compared with his income, it would be unlikely for the court to accept the assertion of self-consumption just by listening to submissions from counsel. Having taken instructions, the defence indicated that there was no intention to adduce any further evidence in support of the assertion. In all the circumstances, including what I have said to the defence, and that from the facts which the defendant admitted, what he had told the police was only that he was intending to sell the dangerous drug and there was no mentioning of any intent to keep some of the drug for self consumption.
I do not accept the assertion that the defendant intended to save a part of the dangerous drug for his own consumption. In any case, even if he might have such an intent, that has little impact on sentence in the light of the extremely high latent risk and also that even possession of dangerous drug attracts a custodial sentence.
The defendant was only discharged from prison for his last conviction on 9 February 2013. Within three months he committed the present offence. Defendant, please stand up.
In all the circumstances, I adopt a starting point of 7 1/2 years. You pleaded guilty and for this reason you are entitled to a one-third discount. Having regard to the whole circumstances, I am of the view that this is the extent of discount you are entitled to.
For these reasons, I sentence you to an imprisonment term of 5 years.