COURT: The defendant was originally charged with one count of trafficking in a dangerous drug, namely, 18.66 grammes of a crystalline solid containing 18.6 grammes of methamphetamine hydrochloride to which he had pleaded not guilty and was, therefore, committed to trial and after trial he was convicted of possession, simple possession. On the second count of possession of dangerous drug, namely, 1.49 grammes of a mixture containing 1.15 grammes of heroin hydrochloride and eight tablets containing 0.02 grammes of methadone, he had pleaded guilty.
It is a fact that the police on the day of the offence executed a search warrant. Upon entering the defendant’s premises, found the dangerous drugs in his premises together with tin foil with traces of heroin and, amongst other things, two inhaling devices containing ‘Ice’ and there were scattered around the room two electronic scales, lighters, flame guns and empty plastic resealable plastic bags. The defendant was the sole tenant of the flat.
The market retail price of the drugs for the methamphetamine hydrochloride was about just over HK$8,000. The defendant is a holder of an Iranian passport and has been resident in Hong Kong since 2003, and he had been receiving CSSA since October 2015 and it is in the region of about less than $4,000 a month and that would include the public housing rent of 1,265. Now, this sum was increased. The CSSA sum was increased to over $5,000 from 2016 to 2018 and then it was downward adjusted again in November 2018 to 3,852.
It is the defendant’s contention that the drugs were for his own consumption and that he has a back problem which caused him pain and the taking of the drugs would in some way relieve his pain. He also gave evidence that he did go for methadone, however, he would also supplement it with the drug. It is a fact that the defendant, as Mr Parry said, does have a back problem and, in fact, it has caused him to come to court in a wheelchair. He suffers from a lot of pain and there is also degeneration of his intervertebral disc in his lumbar spine.
The defendant himself is aged 57 and he has been married several times previously but after his last divorce he has lived by himself at the address where the police raided on the day of the offence and, therefore, he was living alone and he was the sole tenant. Mr Parry in his mitigation has said everything he could possibly say on behalf of the defendant. I did call for a DATC report, however, he was found unsuitable for DATC because of his back injury and so the only appropriate sentence that I can impose in the circumstances is one of imprisonment.
I did hear from Mr Parry that the defendant wishes to be able to take rehabilitation and asked, perhaps, for probation. That is most inappropriate in the circumstances. The amount of drugs is not a small one. Although, it was all found at his home, however, the latent risk factor is also present. There were two inhaling devices, amongst other things, found at his premises and it is also a fact that the defendant himself is on CSSA and, as far as his finance is concerned, he may be tempted to supplement his income with passing on or selling some of these drugs he has to other people. Although, of course, the defendant in his evidence said that his mother sends him money whenever he needs it.
After taking into account all this, the Court of Appeal has laid down guidelines for sentencing in trafficking of dangerous drugs. For possession of dangerous drugs, however, the normal sentence is about 15 to 18 months for drugs in this category. In relation to the Count 1, the amount of drugs I consider would merit a starting point sentence of 15 months and I have to consider the latent risk factor. As I said, there is a great temptation for the defendant in his condition to disseminate the drugs he has to others and so I would put the latent risk factor as meriting 6 months. So the total month imprisonment will be 21 months.
However, I also accept from the letter, that Mr Parry has handed up written by his then counsel to the Director of Public Prosecutions on 27 June 2019 saying that the defendant would plead guilty to simple possession of those drugs. I did also note that at the case management hearing, this was put forward and counsel for the prosecution, Mr Wong, had indicated that that was not acceptable to the prosecution. So giving the defendant the full benefit of this indication by letter prior to the committal, I will give him one-third off. So giving him one-third off from 21 months will bring it down to 14 months. So I sentence the defendant to 14 months’ imprisonment.
As for Count 2, the amount of drugs, of course, is heroin and it is small with eight tablets of methadone, about 0.02 grammes of methadone, and so I would consider that an overall sentence on Count 2 would be 6 months and reducing it by one-third to 4 months. Taking the totality principle into consideration, I will order that the sentence in Count 2 will be served concurrently to the sentence in Count 1 and so the defendant will go to prison for 14 months.