COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, and a 2nd count of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the same ordinance.
On 1 April 2022, at a carpark space, number A075, Level B1, Carpark of Regentville, 8-9 Wo Mun Street, Luen Wo Hui, Fanling, New Territories, the defendant unlawfully trafficked in dangerous drugs, namely, 12.6 grammes of a crystalline solid containing 12.4 grammes of methamphetamine hydrochloride. These drugs were found under the front passenger seat of a car registered to the defendant’s boyfriend. Both the defendant and her boyfriend were tidying the car at the material time when they were intercepted by the police and the car searched. Under caution, the defendant said those drugs found under the front passenger seat, which are the drugs of Charge 1, belonged to her and had nothing to do with her boyfriend.
Subsequently, the defendant was taken upstairs from the carpark to her residence, Flat B, 17th Floor, Block 2 of the same complex, and a search was conducted. In a bag inside the defendant’s black backpack, the police found three more packets of methamphetamine hydrochloride and an electronic scale as well as four blue packaging bags. These are the drugs of the 2nd count, 2.57 grammes of a crystalline solid containing 2.54 grammes of ‘Ice’. The defendant again was arrested and under caution, she said half of those drugs were for her own consumption and the other half for sale. Again, she reiterated that her boyfriend knew nothing about the drugs.
She gave a further explanation in a video-recorded interview and told the police that she purchased the week before 10 grammes of methamphetamine hydrochloride for $4,000 to $5,000. She would consume some herself and sell the rest to her friends for between $200 and $300 per 0.5 grammes. Drugs found inside the premises were for her own consumption whilst the eight packets found in the vehicle were hidden there by her. The defendant agrees that the estimated street value of all the drugs seized was $8,677.
Mitigation
The defendant is 38 years old and single. She was unemployed at the time of her arrest. She was living with her present boyfriend. She did have a clear record when she was arrested, but three weeks after her arrest for these offences, she was sentenced to a Drug Addiction Treatment Centre order for possession of dangerous drugs in Fanling Magistracy. It is clear from her record for this conviction, she had failed to answer police to court bail, therefore jumping bail between March 2017 to 1 April 2022, when she was arrested for this case. There was a warrant out for the defendant’s arrested when she was arrested for this case.
Ms Yue has given me full details of the defendant’s family background and her tragic start to life. She has had little parental or adult love, care or supervision from a very young age and was abandoned by her mother and step-father as a teenager. They left her with her half-brother, who was five years younger than herself. They were both taken into care by the Department of Social Welfare and lived in an orphanage until adulthood. Tragedy continued to consume her because she was betrayed by her half-brother, who she financially supported and turned to drugs. When she met her current boyfriend, she quit drugs, but she lost two babies in quick succession only to find out she was unable to stay pregnant. This led her back to drugs to cope with her loss.
I do sympathise, but trafficking in dangerous drugs is a very serious offence and personal mitigation of this nature carries little weight as far as sentencing is concerned. However, I will, of course, bear in mind everything in said on behalf of the defendant and consider her own personal letter to the court as well as a mitigation letter I have received this morning from defendant’s boyfriend.
Trafficking Guidelines
I have considered all mitigation, facts of the case as well as tariff guidelines for both trafficking methamphetamine hydrochloride, ‘Ice’, as well as being in possession of the same drug for consumption.
The sentencing guidelines in ‘Ice’ is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, and the starting point for trafficking between 10 to 70 grammes of ‘Ice’ is 7 to 10 years’ imprisonment. Therefore, trafficking in 12.4 grammes of ‘Ice’ in this case would mathematically attract a starting point of 7 years and 2 months’ imprisonment.
I have also considered the recent Court of Appeal authority of HKSAR v Herry Jane Yusuph, CACC 93/2019, and the six-step approach in sentencing drug trafficking offences. I accept the submission that defendant appears to have supplied and sold to customers who were friends. However, this means she is not merely a courier or a drug mule delivering drugs from A to B. Her role is more serious. Nevertheless, I intend to take a mathematical approach to a starting point. I will take a starting point of 7 years and 2 months’ imprisonment for Charge 1.
As for Charge 2, possession of 2.54 grammes of methamphetamine hydrochloride, I have taken into account the defendant is or was at the time of her arrest a drug addict. I have considered HKSAR v Mok Cho Tik [2001] 1 HKC 261, and the Court of Appeal’s view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months’ imprisonment.
There is also the latent risk factor to consider. That is the latent risk to society when drugs are at large, in the sense that they are possessed by a drug addict who, here, in the defendant’s case, admits she sold the same drugs to her own friends. The latent risk factor can justify an enhancement to a starting point. After consideration of the facts, for this charge of possession of dangerous drugs, I will take a starting point of 18 months’ imprisonment.
The Defendant has pleaded guilty at the earliest opportunity and is entitled to a full one-third discount for both charges. I have also taken into consideration all six steps of the Herry Jane Yusuph authority.
After that discount is applied, I sentence the defendant to 4 years and 9 months’ imprisonment for Charge 1 and 1 year’s imprisonment for Charge 2.
Taking into account the totality principle and the facts of the case, I will order that the sentences for both charges to be served concurrently. Therefore, the defendant is sentenced to a total of 4 years and 9 months’ imprisonment.