The accused was the registered tenant of that room. The accused consented to a house search after the officers had showed a search warrant.
During the house search, the items that were found in the flat as follows:
(1) one plastic bag containing 6.52 grammes of a crystalline substance containing 6.27 grammes of methamphetamine hydrochloride (‘Ice’);
(2) one plastic bag containing two paper packets containing a total of two plastic bags containing 0.29 gramme of a crystalline solid containing 0.26 gramme of ‘Ice’;
(3) two plastic bags containing a total of 5.58 grammes of a crystalline solid containing 5.27 grammes of ‘Ice’;
(4) one plastic bag containing one paper packet containing two plastic bags containing a total of 4.54 grammes of a crystalline solid containing 3.51 grammes of ‘Ice’;
(5) one glass bottle containing 2.49 grammes of a crystalline solid containing 2.26 grammes of ‘Ice’;
(6) four plastic bags containing a total of 93.1 grammes of a crystalline solid containing 69.5 grammes of ’ice’;
(7) an electronic scale; and
(8) some transparent resealable plastic bags.
During the house search, on a metal shelf in the living room of the flat, the police found the following:
(1) two plastic bags containing a total of 0.91 gramme of cannabis in herbal form;
(2) one plastic bag containing 0.92 grammes of a solid containing 0.77 grammes of fluorodeschloroketamine; and
(3) 28 millilitres of a liquid containing 0.05 grammes of a solid which, upon drying, contained methamphetamine.
A total of 112.52 grammes of a crystalline solid containing 87.07 grammes of methamphetamine hydrochloride was found. This is reflected in Count 1 of the charge sheet. The 2nd count comprises the drugs found on the shelf just mentioned.
The accused admitted he possessed the drugs found on the metal shelf in which the drugs are mentioned in the 2nd count.
Following his arrest and caution, he admitted possession of the methamphetamine hydrochloride for the purpose of trafficking for a reward of $500. He claimed that the drugs found on the metal shelf were for his own consumption.
Later on in the same day, he undertook a video-recorded interview, and that was under caution. In the course of the interview, the accused made the following admissions:
(1) His old friend called “Kwong Tau Sing” 光頭城 asked him to deliver ‘Ice’ to the flower bed of Lai Kok Estate for a reward of $500. That was the cash seized on the accused by the police.
(2) Upon instructions, he obtained ‘Ice’ and the reward from the flower bed of a park in Fortune House. He then re-packed it into small bags using the electronic scale and concealed the small plastic bags in different places in the flat before delivery.
(3) He intended to deliver the methamphetamine hydrochloride on the afternoon of 22 April 2020 but was arrested by the police before that.
(4) He claimed that the drugs on the metal shelf were for self-consumption, which were given to him by an unknown male at earlier times.
(5) He admitted that he was the only tenant of the flat and he was the only one with keys to the flat.
The total street value of all of the dangerous drugs in this case was about $72,500.
At the time of his arrest, the accused was in possession of three mobile phones, cash of HK$500 and the keys to the iron grille and wooden door of the flat.
Procedural History
At a result, the accused was charged with (1) trafficking in 112.52 grammes of a crystalline solid containing 87.07 grammes of methamphetamine hydrochloride and (2) possession of a dangerous drug in respect of those items found on the shelf. That is the cannabis, the fluorodeschloroketamine and the traces of methamphetamine.
He was brought up before a magistrate on 23 April 2020. In the result, after a number of adjournments, the accused pleaded guilty to both charges on 7 June before Mr Tang Siu-hung, Daniel, sitting as a permanent magistrate and was committed for sentence to this court.
He has, through his counsel, admitted the set of facts in the bundle and confirmed his plea. He was convicted as charged.
Background and Mitigation
The accused was born in Guangdong. He is aged 64 now. He was educated to lower secondary level in the mainland. He was married but resided alone in the flat since 2018. He was unemployed and was a CSSA claimant and received something of the order of HK$3,600 per month at the time of his arrest.
The accused has a criminal record including convictions for theft and assault, but they are not drug-related offences. Further, these convictions occurred a very long time ago. As a result, I do not propose to take that into account against the accused.
Counsel for the accused, Ms Money Lo, submitted that the accused is deeply remorseful for his behaviour. I accept that submission. I am informed that the accused fully understands that his conduct will attract a substantial prison sentence. In her submission, Ms Lo indicated that the accused promises to kick the drug habit in prison and atone for his misdeeds. That is a positive thing to hear. I certainly hope it happens.
The second major component of the submission in mitigation is the assertion that about 20 per cent of the quantity possessed by the accused was for his own consumption. There is reasonable circumstantial support for the accused being addicted to ‘Ice’, as there is evidence that the accused had amphetamine in his urine two days after his arrest. Further, he also said so in his video-recorded interview and the prosecution does not dispute this claim.
Sentencing Principles
Sentencing fo drug trafficking
For many years, the community of Hong Kong has taken a severe view of drug trafficking - particularly in relation to drugs such as ‘Ice’. It is easy to see why. This drug has terrible consequences for the individual. It is addictive. Ridding oneself of that addiction is, to say the very least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to methamphetamine hydrochloride is fraught with instances of disappointment.
However, there are serious consequences also for the community. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs. Further, the conduct of persons affected by ‘Ice’ in private, and possibly more pertinently in public, can be quite dangerous.
The view of the community is reflected in the maximum sentence provided by section 4 of the ordinance. That provides for convictions on indictment for which the maximum sentence is life imprisonment and a fine of $5 million. The view of the community is also reflected by the courts in the nature of sentences and the levels of sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug-trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drug, including the drug, the subject of the charge in this case.
In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The guidelines suggested that for quantities involved in the present case in relation to ‘Ice’ falls within the 70 grammes to 300 grammes’ range, which attracts a sentence of between 11 to 15 years’ imprisonment. The range in question is upon the basis of a conviction after trial, and that is the basis upon which the starting point is articulated.
Sentencing principles in relation to possession of dangerous drugs
The maximum sentence for possession of dangerous drugs is a fine of a million and, subject to 54A of the Dangerous Drugs Ordinance, to imprisonment of 7 years. Section 54A does not have any impact in the present case. There is not, can be no possession tariff.
The accused asserted that a proportion of the drugs, the subject to the trafficking count, were for self-consumption. In this regard, the accused made an admission under caution that part of the drugs were for his personal consumption. The authorities clearly recognise that on a trafficking-in-dangerous-drugs case, possession of some of the drugs, the subject of the charge, for self-consumption, can be a mitigating factor, and you can see that in The Queen v Chan Mung Lung [1992] 2 HKCLR 127, HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, and more recently in HKSAR v Choi Chun Wo [2018] 5 HKLRD 717. But as Choi Chun Wo makes plain, possession of dangerous drugs is a serious offence and may also give rise to an issue of “latent risk”.
In view of the fact that the possession of dangerous drug is in itself a serious crime and that there may be an issue of latent risk to consider, as a matter of practical necessity before the self-consumption could be a significant issue as mitigation, the proportion of the narcotic which is the subject of the trafficking-in-dangerous-drugs charge, which is either proved or accepted to be for personal consumption, would have to be significant. In Wong Suet Hau (above), the court clearly implied that a significant proportion was not simply a proportion greater than trivial. Anything less than a significant proportion being retained for self-consumption would make no or practically no or practically very little difference to the sentence. This point was forcefully made in Chow Chun Sang (above) when Yeung VP said:
“We are of the view that in trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on the circumstances, fall somewhere between 10 per cent and 25 per cent of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organised and premeditated, and the background and criminal record of the defendant.”
Plainly, when one factors sentencing possession and the enhancement which would be justified by reason of latent risk in virtually all cases, it would clearly take a significant proportion of drugs for self-consumption to justify a discount in the range of 10 to 25 per cent.
In HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572, the point was reinforced because the Court of Appeal there specifically restated that a discount would only be available where a significant proportion of drugs in which the defendant trafficked was for self-consumption. Finally, in HKSAR v Liu Ming Sze [2017] 1 HKLRD 297, after an extensive review of the authorities, the Court of Appeal concluded that for self-consumption of up to 10 per cent would not qualify for the kind of discount contemplated in Chow Chun Sang (above). The factual context of this case is important to understand the point being made by the Court of Appeal. The complaint on appeal was the sentencing judge had given a discount below the 10 to 25 per cent range in Chow Chun Sang (above). The quantity of drugs accepted for self-consumption in that case was up to 10 per cent. Accordingly, it is hardly surprising that the proportion was unlikely to attract discounts of the magnitude suggested in Chow Chun Sang (above). The court in Liu Ming Sze (above) refused the applicant leave to appeal and left undisturbed the notion of some discount being given for the proportion of drugs.
Role of the Accused
It is critical to determine the role of the accused in the crime (see HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, [2020] HKCA 974, §49, 58-61, 64-68). In this case, the Court of Appeal recognised that although the starting point for the sentencing guidelines for drugs such as cocaine or ‘Ice’ start upon the premise of sentencing for a courier or storekeeper, there is a range of culpability even if the trafficker could be so characterised.
Discount for Plea of Guilty
The well-accepted principles of sentencing recognise that where an accused person pleads guilty at the earliest practicable moment, then a discount from the appropriate starting point of 33 per cent would be applicable.
Application of Sentencing Principles
Trafficking in a Dangerous Drug
The sentencing band for the quantities between 70 and 300 grammes carries with it a sentencing range of between 11 and 15 years’ imprisonment. In my judgment, the arithmetic starting point is 11 years and 3 months. As to the issue of the role of the accused, I am prepared to accept the accused can be characterised as a courier. The circumstances support the conclusion that culpability would be appropriately reflected at the arithmetic starting point.
Possession of Dangerous Drugs (Count 2)
Possession of the three drugs is not all that great. There is no tariff for the charges of possession but, clearly, a term of imprisonment is called for. In my judgment, 3 months’ imprisonment would be appropriate. I do not see any latent risk in relation to the drugs in the 2nd charge. There should be no enhancement in respect of that.
Timely plea of guilty to the change
The accused clearly pleaded guilty and at the earliest practicable opportunity. He is entitled to a full one-third discount on his sentence.
Disposition
I am prepared to accept that a proportion of the drugs was for personal consumption. The combination of the evidence suggested an addiction. The urine sample after arrest and the uncontested assertion that this man intended to sell a proportion of the drugs and retain a proportion for himself leads me to this conclusion. Consistent with Wong Suet Hau (above), I do not think there is any necessity for what is known as a Newton hearing. I am not able to quantify with any real precision the proportion of ‘Ice’ in the possession of the accused which was for self-consumption. I am certain that the quantity for self-consumption was more likely to be in the range of 10 to 20 per cent. In my judgment, the proportion for self-consumption in this case is such as to make a small difference to the sentence which the accused would otherwise receive. This takes account of the likely sentence that the accused would have received had the proportion been subject to the sentence for possession of that narcotic.
The course I propose to adopt is to adjust the discount upwards to reflect the proportion of drugs possessed by the accused in relation to the 1st count which were for self-consumption. The enhanced discount reflects that the ‘Ice’ possessed by the accused for self-consumption would itself constitute a potential crime and for that quantity there would be a latent risk. I judge the appropriate discount for the plea of guilty and the possession of the drugs for self-consumption in connection with the 1st count amounts to a discount of 40 per cent.
Applying that discount to the starting point of 11 years and 3 months results in a sentence of 6 years and 9 months. That deals with Charge 1.
In relation to Charge 2, applying the discount would result in a sentence of 2 months. And, however, taking the totality into account, I order that the sentence on the 2nd charge be served concurrently with the 1st charge.
Would the accused please stand up? The order of this court is that taking everything into account, your sentence will be 6 years and 9 months.