The accused was unanimously convicted by the jury of one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.
At trial, the evidence called showed that, on 28 September 2017, when the landlady Madam Kan visited the premises, she was unable to open the door with her keys. She knocked and later a tattooed man opened the door and she then saw three persons there, including the accused. Madam Kan found the tattooed man fierce and she left. While downstairs, she called her shareholder, Mr Lau, and a decision was made to report the matter to the police. Afterwards, Madam Kan returned to the flat with a locksmith. By that time, the accused was the only person present.
Madam Kan informed the police that she had not rented out the unit but it later turned out that Mr Lau of the company had indeed rented out the flat to a Mr Sunny Fung and had the keys given to him on 27 September 2017.
On her second visit to the flat, the police and Mr Lau arrived shortly. As Madam Kan found that there were holes drilled in that newly renovated flat, both Madam Kan and Mr Lau then decided to terminate the tenancy and to just ask the accused to leave. They also asked the police to stay to witness the accused packing up the things.
However, when the accused picked up a green recycle bag, a packet fell out of it. The police picked it up and found it to contain suspected “Ice”. The accused was therefore arrested and cautioned. The constable then called for reinforcement and during a subsequent search of the premises, seven packets of drugs were found in the accused’s waist bag and one packet of drug was found on the floor. Moreover, during the body search of the accused, another paper packet of heroin was found.
In total, 10 packets of drugs were seized and they are particularized in the count. That is a total of 86.80 grammes of a crystalline solid containing 86.30 grammes of methamphetamine hydrochloride and 51.11 grammes of a mixture containing 35.80 grammes of heroin hydrochloride.
Mitigation and the defendant’s background
The accused was born in Hong Kong and is aged 63. He was educated up to Form 3 level and is divorced without any children. Prior to his arrest, he lived alone. According to Mr Tracy for the accused, the accused was generally employed in the construction industry but because he has passed his retirement age, he was in receipt of social security when he was unemployed.
The accused has been before the court on six previous occasions with four possession-of-a-dangerous-drug and two trafficking-in-a-dangerous-drug convictions. He was last sentenced to a term of 50 months in February 2014 for the offence of trafficking in a dangerous drug in respect of which he was discharged on 5 July 2016. Within about 15 months, he then committed the present offence.
In mitigation, Mr Tracy accepted that the accused’s own financial situation and his personal circumstances are generally not mitigating factors of any value in the face of serious offences like trafficking in a dangerous drug. However, Mr Tracy urged this court to exercise leniency given the accused’s age. When asked, Mr Tracy also submitted that this is not a case where an enhancement of sentence is called for because of the accused’s repeated offending.
Sentencing considerations
Since the count of which the accused was convicted involved multiple drugs, that is “Ice” and heroin, there are two sentencing approaches: the individual approach and the combined approach. See for example: HKSAR v Ko Ka Hing [2009] 4 HKLRD 856 and HKSAR v Wong Kin Kau, CACC 269/2009 (4 May 2010, unreported).
In this case, as the bulk of the drugs was “Ice”, I am going to adopt the combined approach. Of course, irrespective of which approach is to be taken, the paramount consideration at the end is the totality of the overall starting point.
The revised tariffs for trafficking in “Ice” were laid down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. Since the present offence was committed after the new guidelines were handed down, the applicable band for trafficking between 70 and 300 grammes of “Ice” is a term of imprisonment of between 11 and 15 years.
In this sentencing exercise, I agree with Mr Tracy in respect of the following:
(1) That if 35.8 grammes of heroin are to be converted to “Ice”, the result is about 9.8 grammes of “Ice”.
(2) With that conversion, the total narcotic content for sentencing purposes of the “Ice” is 96.1 grammes.
(3) If one uses the absurdity test to check the result and assuming that all the quantities of drugs seized were “Ice”, then a term of 11 years and 11 months may be called for and if one were to apply the ratio test, then a term of 11 years and 4 months is appropriate.
Now, for 96.1 grammes of “Ice”, a term of 11 years and 5 months is appropriate. However, as this case involved not just the dangerous drug “Ice” but two types of drugs, that is heroin and “Ice”, an enhancement to reflect the more serious nature of trafficking in different types of drugs is appropriate. For example, see HKSAR v Chan Yuk Leong, CACC 318/2013 (8 April 2014, unreported).
Therefore, having considered the facts of this case and the drugs involved, I am going to take a starting point of 11½ years for this offence. I note that this term, when checked against the absurdity test which yielded a result of 11 years and 11 months, is not inappropriate.
The accused was convicted after trial and so he is not entitled to any reduction for a guilty plea. There is also nothing which I find in his mitigation which would warrant any discount in sentence.
In respect of his previous offending and the fact that he was found to have committed the present offence within about just 15 months from his last discharge, after consideration, I have decided that the sentence in this case need not be enhanced.
The sentence in this case
As I have pointed out, the accused is convicted after trial and is not entitled to any reduction for a guilty plea. He is therefore to serve a term of 11½ years for the offence in respect of which he was convicted by the jury.
