Summary of Facts
At around 12:24 pm on 28 September 2020, police officers were lying in wait or in ambush at Choi Yuen Road near Sheung Shui MTR Station. The defendant and his brother-in-law, who he lives with, were seen coming out of exit C of that MTR station. They were both looking around and wandered around this exit for a while. They then took the stairs to the footbridge near exit B. Both were stood on the footbridge at about 20 metres apart. Both appeared nervous and were constantly looking around them as if they were waiting for someone.
At around 1:02 pm, the defendant quickly walked towards his brother-in-law and both took off down the stairs of the flyover. The police found this action suspicious and intercepted them on Choi Yuen Road. When these officers declared their police or revealed their police identity, both suddenly tried to flee and both needed to be subdued physically by police officers. One officer prised open the defendant’s left fist which he had held closed whilst they were struggling. In his palm was a tissue paper, and in this tissue paper was a transparent resealable plastic bag containing 27.5 grammes of a crystalline solid containing the 23.6 grammes of ‘Ice’. This tissue paper had a red rubber band around it.
The defendant was arrested and cautioned. He admitted that the bag contained ‘Ice’ but that it was for his own self-consumption. A few hours later, he was taken home to his reported address where he lived with that same brother-in-law and sister. His bedroom was searched and the police found in a box in a drawer near his bed which contained a tissue paper wrapping a transparent resealable plastic bag containing 0.31 grammes of a crystalline solid containing 0.3 grammes of ‘Ice’, as well as a transparent glass bottle adapted for the purposes of inhaling ‘Ice’ in another drawer.
He was arrested. And under caution, he admitted that that bag of ‘Ice’ as well as the ‘Ice’ bottle belonged to him. It was for his own self-consumption. Nobody else had access to his bedroom. The defendant elaborated further in his subsequent video-recorded interview where he admitted that on that day, he and his brother-in-law went from Ma On Shan to Sheung Shui MTR Station. He repeated that the bag of ‘Ice’ seized from him by the police and the ‘Ice’ found in his bedroom belonged to him and were for his own self-consumption. He admitted he had a drug habit of consuming about 0.3 grammes of ‘Ice’ every two to three days. He would use the ‘Ice’ bottle found in his bedroom. He worked in a hair salon earning about $15,000 a month.
It was admitted that the estimated street value of the ‘Ice’ seized was about $18,410. And he now admits that he knowingly possessed the ‘Ice’ particularised in the 1st charge for the purposes of unlawful trafficking, and the ‘Ice’ as particularised in the 2nd charge was for his own consumption.
Mitigation Put Forward
The defendant is now 27 years old, single, educated in Hong Kong up until Form 5 level. After school, he has always worked in hair salons and was earning $15,000 a month when arrested. He is not a man with a clear record. He has nine previous convictions. The majority of them, eight convictions, involve offences of dishonesty. He has one conviction for possession of dangerous drugs. And in March 2018, he was sentenced to a drug addiction treatment centre order.
Ms Tjia has filed a written mitigation and she has said all she can say on his behalf.
His father passed away when he was only a baby and his mother passed away when he was 18 years old. This was at about the same time as he began to dabble in drugs and became addicted to ‘Ice’.
After his arrest for these offences, he tested positive for amphetamines upon his remand in custody. He has two elder sisters and an elder brother. He lives with his eldest sister and his brother-in-law. By way of an explanation, I have been told in mitigation that he consumes about 0.3 grammes of ‘Ice’ every two to three days and needs to spend about $4,000 each month on drug. Sometimes, he does not have enough money and his dealer takes advantage of him. He offers the defendant some free ‘Ice’ for his own consumption in return for him carrying or delivering drugs as a courier or a drug mule.
The defendant frankly admits that he started taking ‘Ice’ again after he was released from his last sentence, the Drug Addiction Treatment Centre order. This has led to the commission of these offences. I have been told he wants to quit drugs and wants to lead a law-abiding life. He is hoping that after this term of imprisonment he will be able to stay away from drugs and not relapse.
His best mitigation is his plea at the earliest opportunity.
Sentencing
I have considered the approach to sentencing those trafficking in dangerous drugs as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I have considered the six-step sentencing approach set out in that authority.
In this case, I accept and am satisfied that the defendant was a courier. He was delivering drugs that he was holding in his hand when arrested. Therefore, his sentence is to be determined by the relevant tariffs and the quantity of the drugs involved.
Tariffs for the drug ‘Ice’, methamphetamine hydrochloride, are set out in the authority in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. In that case, it was held that the sentencing for trafficking in 10 to 70 grammes of ‘Ice’ is 7 to 11 years’ imprisonment after trial. Here, we have 23.6 grammes of ‘Ice’ which itself attracts a starting point of 7 years and 11 months. I see no other aggravating factors which may enhance his sentence.
I will add here that I suspect he was involved with his brother-in-law or involved by his brother-in-law that day when arrested. Clearly, both of them were waiting for someone and he was the one holding the drugs to be delivered. He was the one carrying all the risk of being caught and arrested. By their joint reactions and their attempts to evade arrest when the police officers approached them, indicates to me they were both as guilty as each other but only the defendant was caught holding the drugs. The defendant has not implicated his brother-in-law but I suspect my suspicions are well founded.
I have considered the facts of this case, mitigation and will take a starting point of 7 years and 9 months’ imprisonment for Charge 1. As far as Charge 2 is concerned, I would bear in mind the authority of HKSAR v Mok Cho Tik[2001] 1 HKC 261. There, the Court of Appeal held that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months. Obviously, there are other factors to be taken into account when determining a starting point, such as the quantity, any previous convictions, where the drugs were found and any latent risks.
I consider the small amount of ‘Ice’ found relevant, as well as the fact he has a previous similar conviction for possession of dangerous drugs. I am satisfied that the drugs found in his bedroom were for his own use and were unlikely to be shared with others. Therefore, I find a starting point of 12 months’ imprisonment appropriate for Charge 2.
Counsel for defendant, Ms Tjia, has asked me to consider the totality principle and cited an example of a recent and similar case where a defendant faced both a trafficking charge and a possession charge. In that case, it was accepted that the drugs for the possession charge were taken from the amount of drugs relating to the trafficking charge. That case was HKSAR v Chung Chak Hin & Anor, HCCC 171/2021. There, a concurrent sentence was considered.
The defendant here has pleaded at the earliest opportunity in the Magistracy Court, for which he is entitled to the full one-third discount. Accordingly, after that discount is applied to the starting point of 7 years and 9 months, the sentence is reduced to 5 years and 2 months’ imprisonment for Charge 1. After that same discount is applied to the starting point of 12 months, the sentence is reduced to 8 months for Charge 2.
I have taken into account the totality principle, the timeline for the defendant’s arrest for both charges, the nature of the two charges. And although there are two distinct offences, I will accept submissions from defence counsel and order that both sentences be served concurrently.
Therefore, the defendant is sentenced to a total of 5 years and 2 months’ imprisonment.
ACCUSED: I understand.