The particulars of offence are that the defendant on the 19th day of March 2019, at Room 006, Unit 203, 2nd Floor, Lai Cheong Factory Building, No. 479 Castle Peak Road, Cheung Sha Wan, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely, 16.20 grammes of a crystalline solid containing 15.92 grammes of methamphetamine hydrochloride and 476.13 grammes of cannabis, in herbal form.
Admitted Facts
On 19 March 2019, at about 1900 hours, the defendant was intercepted by Customs Officer 1114, Mr Wu Ka-chun, at Ground Floor, Lai Cheong Factory Building, No. 479 Castle Peak Road, Cheung Sha Wan. The defendant claimed that he had just been to Room 006, Unit 203, 2nd Floor, Lai Cheong Industrial Building, 479 Castle Peak Road, Cheung Sha Wan. The custom officer took the defendant to this premises for a search on the authority of a search warrant.
On a wooden table inside the premises, the customs officer found:
(a) A glass inhaling device with liquid inside which was found to contain 0.02 gramme of methamphetamine hydrochloride.
(b) 3 plastic bags containing a total weight of 2.50 grammes of a crystalline solid wrapped in tissue paper, which were found to contain 2.45 grammes of methamphetamine hydrochloride.
(c) A box containing a bundle of resealable plastic bags.
(d) An electronic scale.
(e) A key ring with a key.
When being arrested and cautioned, the defendant said that the ‘Ice’ had been for his own consumption and the inhaling device had belonged to him. As for the key, he said that it was used to open the safe which was placed under the wooden table. With the key and the password provided by the defendant, the safe was opened and searched. The customs officer found, inter alia:
(a) A plastic bag with 7.95 grammes of crystalline solid inside containing 7.84 grammes of methamphetamine hydrochloride.
(b) A plastic bag with 4 plastic bags inside containing a total weight of 5.75 grammes of a crystalline solid containing 5.63 grammes of methamphetamine hydrochloride.
On being further cautioned, the defendant said that the ice had belonged to him for his own consumption but refused to disclose their source. He also said that the premises had been rented by him and he was the only one who could have access to the premises.
On a further search of the premises, the customs officer found a number of resealable plastic bags containing a total weight of 476.13 grammes of herbal cannabis. The defendant said under caution that the cannabis had belonged to him for his own consumption.
The street value of the methamphetamine hydrochloride and the cannabis in March 2019 was estimated to be $219,835.59.
With the key found on the defendant, the custom officer gain entry into and searched the residence of the defendant at 21st Floor, 161-163 Tai Lam Street, Sham Shui Po with nothing suspicious found.
On the person of the defendant, the customs officer found 3 mobile telephones and cash $2,610.
Criminal Records
The defendant has 38 previous convictions of which 15 were possession of a dangerous drug, 2 were possession of apparatus fit for consumption of a dangerous drug and 1 for trafficking in a dangerous drug. The last conviction being the offence of trafficking in a dangerous drug for which he was sentenced to 3 years 4 months imprisonment on 11 July 2016. According to the information provided by the prosecution, he was released from Tai Lam Correctional Service Institute for this offence on 8 June 2018.
Mitigation
Counsel for the defence, Mr Luk, makes a very thorough and helpful mitigation on behalf of the defendant. According to him, the defendant is aged 44, educated up to Form 1, having a son of 16 years old. At the time of arrest, the defendant was a hairstylist, earning about $20,000 a month. He, at that time, co-habited with his girlfriend in a cubicle in Sham Shui Po.
Mr Luk sets out in his written submission the approach the court should follow in sentencing a drug-trafficking case involving more than 1 types of dangerous drug. He points out that some of the dangerous drugs were for the own consumption of the defendant, citing in support the urine test result of the defendant on admission to the Correctional Service Department which was positive to methamphetamine, and the confession made by the defendant to the police that the dangerous drugs were for his own consumption. When the court points out to the defence that the court only accepts a small portion of the dangerous drugs to be for the own consumption of the defendant, Mr Luk, after taking instructions, informs the court that the defence will not take the matter further but relies on his submissions.
Mr Luk submits the letter of the defendant which sets out why he had committed the present offence. According to the defendant, he came to know and started to co-habit with his girlfriend which is now his fiancée after he was released from prison in 2018. The fiancée was a warehouse worker. She unfortunately fell ill, and because of the medical expenses of surgery, the financial conditions of the family became stringent. The defendant foolishly took the risk to commit the present offence for quick money. He is now remorseful and expresses his apologies to his fiancée who visited him in prison everyday despite her illness. The fiancée continued to work as a part-time worker after the surgery although she had not taken sufficient rest, in order that she could have some savings for a comfortable life when the defendant reunited with her after release from prison.
The defendant is determined to turn a new life. Both the defendant and Mr Luk ask the court to pass a lenient sentence.
Sentence
As rightly pointed out by Mr Luk, according to HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the starting point for trafficking in 10 to 70 grammes of methamphetamine hydrochloride, commonly called ice, is 7 to 11 years imprisonment. The amount of ice involved in the present case is 15.92 grammes and the starting point according to these sentencing tariffs is slightly less than 7 years 5 months imprisonment.
According to the case of AG v Tuen Shui Ming & Another [1995] 2 HKCLR 129, which is cited by both the prosecution and the defence, the starting point for trafficking up to 2,000 grammes of cannabis resin is up to 16 months imprisonment and that cannabis resin is four times stronger in potency than herbal cannabis. According to this authority, 476.13 grammes of herbal cannabis in the present case is equivalent to about 120 grammes of cannabis resin. The starting point would be about 1 months imprisonment.
Mr Luk has helpfully set out in his mitigation the various approaches in determining the sentence for trafficking in the ice and the herbal cannabis and the resulting sentence in the present case. The court is, however, of the view that with such a small amount of herbal cannabis and the relatively insignificant term of imprisonment of trafficking in it, it is not meaningful and indeed not worth going into all these calculations. It must be borne in mind that sentencing is not strict mathematical calculation but is an art in accordance with the relevant legal principles. The court is of the view that adopting a starting point of 7 years 5 months imprisonment is sufficient to reflect the culpability of the defendant in the present case.
The defendant has a number of dangerous drugs related convictions but as only one of them was trafficking in a dangerous drug, the court is not going to enhance the starting point for such reason. The court therefore adopts a starting point of 7 years 5 months imprisonment as the basic starting point.
The court accepts that some of the dangerous drugs were for the own consumption of the defendant. And for this reason, the court is prepared to give the defendant some discount in sentence, thus reducing the starting point to 7 years imprisonment.
Giving credit for the guilty plea of the defendant, which only takes place after the case has been committed to this court for trial but before the case management hearing, the court sentences the defendant to 5 years 3 months imprisonment, representing a discount of 25 per cent.