Shortly after midnight on 4 April, the defendant was seen by police officers in the area of Hop Yick Road, Yuen Long, behaving in a suspicious manner. When stopped and searched the defendant was found to be carrying inside his cross-shoulder bag a plastic bag containing four resealable transparent plastic bags containing the drugs in the indictment.
The drugs were subsequently examined and determined to have a retail value on the street at that time of HK$41,567.
The defendant is aged 38 and has been in trouble with the law since 1991. It is not a very comforting record because he has had 16 previous times when hew as convicted and amongst those times were several relating to dangerous drugs. The most serious was in 2006 when he was convicted of two counts of trafficking in a dangerous drug for which he was sentenced to a total of about 6 years’ imprisonment.
The prosecution concedes that considering his background at the time of his arrest that of the amount of 52.46 grammes of methamphetamine hydrochloride, 5 grammes were for the defendant’s own consumption. The defence accept that and Mr Sadhwani submits in mitigation that he had to sell the rest of the dangerous drugs in order to fuel his drug habit.
Mr Sadhwani in mitigation also submitted two cases, which of course do not bind me, as an indication of how other judges had sentenced for amounts which are more or less similar to those in the present case before me.
In drug trafficking cases, apart from the quantity in a particular case, other matters also have to be taken into account and one of the factors is the background of the defendant and, most importantly, his previous criminal record. It has been accepted by Mr Sadhwani that the most relevant case in considering sentence is actually the guideline case of AG v Ching Kwok Hung [1991] 2 HKLR 125 and there the Court of Appeal had suggested that for trafficking in amounts of between 10 to 70 grammes of methamphetamine hydrochloride, a sentence of 7 to 10 years’ starting point would be appropriate.
Mr Sadhwani, as I have said, had submitted two other cases. One is HKSAR v Ho Wai Hung HCCC 457/2011, where the defendant had pleaded guilty to trafficking in 62.33 grammes of a crystalline solid containing 60.96 grammes of methamphetamine hydrochloride. The judge in that case adopted a starting point of 8 years and 9 months and I can see in that case that according to the report that was handed to me the defendant in that case did not have any previous trafficking in dangerous drugs conviction. As was mentioned by the learned at page 3 of the report, although he had five convictions for possession of dangerous drugs, the most serious attracted sentences of 16 months’ imprisonment. The learned judge also said at page 4 in the first paragraph on that page that he had decided to adopt a starting point of 8 years and 9 months because of the sympathetic background of that particular defendant and the support that he will receive on his release from prison. The learned judge said if not for those reasons he would have been, “Minded to adopt a higher starting point.”
In the other case of HKSAR v Au Pui Yan HCCC 80/2013 submitted by Mr Sadhwani, the amount of drugs in that case was 52.26 grammes of methamphetamine hydrochloride. In that case, again, the defendant though has a number of previous convictions which the learned deputy judge said indicated drug abuse, in that case for that defendant it was his first conviction for trafficking in dangerous drugs and in that case the learned deputy judge then adopted a starting point of 8 and a half years’ imprisonment.
In this case the relevant case is the guideline in Ching Kwok Hung. It is clear that the defendant has been given many chances in his past in order to get rid of his drug habit, but he has not done so. He had been sentenced to Drug Addiction Treatment Centre many times in the past and yet it did not deter him from keeping away from drugs and still had committed trafficking, the last of which was in 2006. So clearly the sentences previously was not sufficient to deter him from engaging in this trade and he was found after midnight with these drugs on the street.
I consider that an appropriate starting point in this case would be one of 9 and a half years’ imprisonment. I will reduce that by one year because of the fact that part of the amount was for his own consumption, so that sentence is reduced to 8 and a half years and because the defendant did plead guilty he is entitled to one-third discount, so I reduce further that sentence by one third to one of 5 years and 8 months.
So the defendant is sentenced to 5 years and 8 months.