COURT: The defendant was originally charged with trafficking in a dangerous drug in that he unlawfully trafficked in a dangerous drug, namely 12.8 grammes of a crystalline solid containing 12.5 grammes of methamphetamine hydrochloride. But when he was in Eastern Magistracy on 13 December 2021 he already, through his counsel, informed the court that he would plead guilty to possession of the dangerous drug but that plea was not accepted by the prosecution and thus he was committed to the High Court for trial.
And I was informed recently, that the prosecution was finally willing to accept his plea on possession of dangerous drugs for the amount of drugs which is mentioned in the indictment. And therefore he has pleaded guilty before me today on possession of the dangerous drug.
The case is not a difficult one on the facts in that on 6 January 2021, at about 1043 hours in North Point, the defendant was intercepted by police officers. And in his left hand was the plastic bag inside of which were the dangerous drugs which were named in the indictment which is methamphetamine hydrochloride, 12.8 grammes of a crystalline solid containing 12.5 grammes of methamphetamine hydrochloride.
As the police officers approached the defendant, he then dropped the packet in his left hand to the ground. He was subsequently cautioned and arrested for possession of dangerous drugs and under caution, he said that the ‘Ice’ were given to him by somebody earlier.
The defendant is aged 47 and does not have a very good record. Admittedly he has had 15 previous convictions, four of which were for possession of dangerous drugs. I am informed by Mr Sher that the defendant is divorced and was a delivery worker at the time of the offence, earning about $15,000 a month. And although the defendant was a drug addict, since his remand in custody for this offence, he has got rid of his drug dependency. And also subsequent to his arrest, the defendant’s home was searched and no illegal drugs were found.
And I am informed by Mr Sher that on the day of his arrest, the defendant was in fact going to a private game centre to play games and to inhale the ‘Ice’ which he had with him. And apparently this private game centre provided free ‘Ice’ inhaling device.
I am informed by Mr Sher that the defendant had been intermittently using drugs since 1997 and that he changed to inhaling ‘Ice’ in about 2010 and that his daily consumption was between 1 to 2 grammes. Now, it is also clear from the urine test conducted by the Correctional Services on 12 January that his urine was found to be positive for amphetamine.
As Mr Sher said, I am grateful to Mr Wright for handing up the case of HKSAR v Wong Wai Wah, which is a Court of Appeal case number 181/2017 where for a similar amount of ‘Ice’ as in this case, the Court of Appeal had indicated that a starting point of 18 months was reasonable and then taking into account the facts of that case that the degree of latent risk of trafficking is medium, and enhanced the appropriate sentence by 9 months’ imprisonment.
As Mr Sher very helpfully pointed out in the case of HKSAR v Lee Chun Man, also another Court of Appeal case 360/2014, the appeal court also dealt with the latent risk factor. And in there, at paragraph 16 of that case report, their Lordships discussed what factors are relevant as to the assessment of risk in the circumstances of the case of dissemination of the dangerous drug. And their Lordships pointed out the factors relevant to such, in this instance, was discussed by Stock JA (as he then was) in HKSAR v Mok Cho Tik [2001] 1 HKC 261. And at page 267, Stock JA (as he then was) said:
“The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”
And in this case as I have mentioned, the defendant has got the drugs in his hand and according to Mr Sher he was on his way to a private game centre where he was going to inhale the drugs, and therefore other people would be present at that private game centre.
He had more in his possession, that is some 12 grammes of methamphetamine hydrochloride, and he only needed 1 to 2 grammes a day so therefore there is a latent risk that he may share it with others. But I do accept, as Mr Sher pointed out, he was in gainful employment and had a monthly income of $15,000. So taking all the circumstances into account, I agree with Mr Sher that the risk is a medium one.
So I will take a starting point of 18 months’ imprisonment for the amount of this drug and then enhance that sentence by 9 months for the latent risk factor.
And of course as I have indicated, the defendant had already indicated his plea in the Magistrate’s Court at the earliest opportunity and so he is entitled to the full one-third discount. So giving him the full one-third discount, the sentence is therefore reduced to one of 18 months’ imprisonment.
So mathematically, it means the starting point of 18 months plus 9 months’ enhancement makes it 27 months and then the one-third discount reduces it to 18 months. And therefore, it means that you can be released immediately.