The defendant was stopped by the police when he left the premises at Mezzanine Floor, Front Block, No 8 Gillies Avenue South, Hunghom. He resided at the rooftop flat of the same building.
The police officers took the defendant into the flat at Mezzanine Floor, searched him and found the ‘Ice’ contained in 12 packets in a waist bag of the defendant. The police also found cash $6,000 and one transparent plastic bag which further contained 10 empty resealable plastic bags in the waist bag carried by the defendant.
Under caution at the scene and during police investigation, the defendant said all the drugs found on him were for his own consumption. In court, he also told the jury that all the drugs were for his own consumption. The jury, by majority verdict of five to two, convicted the defendant of trafficking in dangerous drugs.
The defendant is now 50 years old, locally born. He received education up to Form 3. He is a divorcee but was living with his girlfriend at the rooftop flat at the material times. He was a plumbing and electrician worker at the time of the offence.
The criminal record of the defendant shows that he had a total of 21 convictions recorded against him arising out of 12 cases between 1992 and 2017. He had been convicted of possession of dangerous drugs on three occasions in 1998 and 2013. He was also convicted of one count of possession of Part I poison in 2013. He had been sentenced to DATC once in 2013.
In mitigation, Mr Pannu submitted that given the narcotic content of the dangerous drugs, the sentence of the defendant falls within the 7 to 11 years’ band of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. Mr Pannu asked me to exercise my discretion and reduce the sentence by 10 to 25 per cent on account of the credible evidence that the defendant was an abuser of ‘Ice’.
In sentencing the defendant, I have taken into account: one, the nature and the narcotic content of the drugs, a total of 24.69 grammes of ‘Ice’ was involved in this case; and, two, the drugs were contained in 12 packets and there were $6,000 cash and 10 resealable plastic bags found on the defendant.
In my judgment, applying the tariff in Tam Yi Chun, this case calls for a starting point of 8 years’ imprisonment, ie 96 months.
For the submissions that the defendant’s sentence should be reduced by 10 to 25 per cent on account of his consumption of ‘Ice’, the defendant should only be given a reduction in the region of 10 to 25 per cent in sentence if there is credible evidence that a significant proportion of the ‘Ice’ was for his own consumption.
The jury, in convicting the defendant, obviously rejected completely his evidence that all the ‘Ice’ found on him was for his self-consumption. The Court of Appeal in HKSAR v Cheung Wai Man [2019] 1 HKLRD 817 said:
“49. In determining the issue of self-consumption, the sentencing court must first find that a ‘significant proportion’ of the drugs were to be consumed by the defendant. If he does not meet this threshold, he is not entitled to the discount suggested in Chow Chun Sang. If he does meet it, the sentencing court must then assess the amount of discount that it should award to him from the adopted starting point. Whilst it may not be possible for the sentencing court to specify the relative amounts of the drugs for self-consumption, it must have at least a broad range in mind based on credible and reliable information and material.
50. We should point out that a sentencing court, in any event, has a discretion to discount a sentence to reflect an element of self-consumption. See HKSAR v Liu Ming Sze [2017] 1 HKLRD 297.
51. The factors to be considered by a sentencing court in establishing a claim for self-consumption as suggested in Wong Suet Hau include:
‘(a) the quantity of drugs and, if known, their value;
(b) the general circumstances, including how the drugs are wrapped, and how many wraps or packets are found;
(c) where the drugs have been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;
(d) the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;
(e) whether the defendant is an addict, or is otherwise accepted to have been a habitual user of the drug in question;
(f) the explanation given by the defendant following arrest;
(g) the defendant’s general means and his ability to pay for his drugs, otherwise than by trafficking in them; and
(h) the defendant’s criminal record, if any, in relation to previous drug offences.’
52. It needs to be borne in mind that possession of the drugs for self-consumption itself carries a term of imprisonment with possible enhancement for latent risk that the drugs will be accessed by or distributed to others. The application of these two considerations, as emphasized in Wong Suet Hau at paragraph 34(4) “may well offset much of the practical value of the mitigation, particularly with certain dangerous drugs which are commonly used amongst friends at social function, including ‘Ice’.”
There is no credible evidence that the defendant would consume a significant proportion of the ‘Ice’ found on him. I have no reason to give the defendant a reduction in the sentence that Mr Pannu asks for.
I am aware that it is not in dispute that the defendant was a user of ‘Ice’ at the time of his arrest. His urine test result shows that he was an abuser of ‘Ice’. He had been sentenced to DATC in 2013. On the other hand, the ‘Ice’ in question was contained in 12 packets and a number of empty resealable plastic bags were found on the defendant.
No hookah, that is ‘Ice’ bottle, was found during the house search of the defendant’s residence. Taking all the matters identified by the Court of Appeal in Wong Suet Hau into consideration, in the circumstances, I am not prepared to accept that a significant proportion of the ‘Ice’ involved was for the defendant’s self-consumption.
I have considered whether the defendant should still be afforded some discount if something less than significant proportion of the ‘Ice’ was for his own consumption. The Court of Appeal said in HKSAR v Yeung Shek Yung, CACC 314/2016:
“22. Nor do we think that the assertion concerning the applicant’s own consumption of some of the drugs concerned would, or should, have made the slightest difference to the sentence in the circumstances of this case. Mr Pun’s reliance on HKSAR v Liu Ming Sze [2017] 1 HKLRD 297 for the proposition that something less than a ‘significant proportion’ should still afford some discount is, with respect, misplaced. The court there was not approving of a departure from, or extension of, the principles in HKSAR v Wong Suet Hau & Another, which it endorsed and applied. Rather, it was dealing with a very small discount which the judge had afforded the defendant, based on a concession by the prosecutor in the exercise of her discretion. It is going too far to say that the court in HKSAR v Liu Ming Sze was approving the course adopted by the sentencing judge: it merely referred to what she had done in refusing leave to appeal against the sentence.”
I conclude that there is no credible evidence that a significant proportion of the ‘Ice’ was for the defendant’s own consumption. No discount should be given for the possibility that something less than a significant proportion of the ‘Ice’ seized was for the defendant’s own consumption.
For the reasons given, I sentence the defendant to 8 years’ imprisonment, ie 96 months.