COURT: Defendant, on 13 July 2023, you pleaded guilty to two charges before a magistrate sitting at the Eastern Magistracy. Those charges were the 1st charge of trafficking in dangerous drugs and a 2nd charge of drug driving. As result of your pleas of guilty, you have been committed here to the Court of First Instance for sentence.
In respect of the two charges, they were both committed on 21 May 2022. In respect of Count 1, the trafficking in dangerous drugs charge, you admitted that on that date at the car park space number C21, at Airport Freight Forwarding Centre at Chun Wan Road, Chek Lap Kok, Lantau Island, in Hong Kong, you unlawfully trafficked in 19.88 grammes of a crystalline solid containing 19.63 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.
In respect of Charge 2, the drug driving charge which is contrary to section 39(K)(1) of the Road Traffic Ordinance, Chapter 374, you admitted that you drove a motor vehicle
bearing registration mark UL110, on a road with a concentration of a specified illicit drug in your blood, namely, 0.38 microgrammes of methamphetamine per millilitre of blood.
The Summary of Facts which you have admitted are a lengthy Summary of Facts but I will summarise them as follows.
On 21 May 2022, police officers were conducting mobile patrol around the Airport Freight Forwarding Centre at Chek Lap Kok. Upon reaching the car park space number C21 on the 3rd floor of the forwarding centre at about 1642 hours, they spotted you acting suspiciously. They therefore intercepted you.
After a search, no contraband was found upon you but you had upon you an iPhone and a set of keys. During an inquiry, you revealed that you had left your identity card in the goods vehicle driven by you and it was parked at car pack space number C21.
You were escorted back to your vehicle which was parked at the car park space with its engine still turned on. You opened the driver side door without using any key and retrieved your wallet and ID card from the overhead compartment above the driver seat. At the time, the car key was found inserted in the ignition of the vehicle.
After a search of the vehicle with your consent, the drugs as quantified in Count 1 was found inside. There were a total of 15 transparent resealable plastic bags found containing the drugs as quantified in the charge.
Also found in the vehicle were drug trafficking paraphernalia and apparatus fit and intended for the consuming or smoking of drugs. They included four small glass bottles, piles of plastic straws, numerous empty small resealable plastic bags in the quantity of 97, 24 glass or plastic tubes which I am informed were part of the glass bottles used to inhale the dangerous drugs such as ‘Ice’, and one glass bottle which was an inhaling device which contained a liquid and upon drying of that liquid by the government chemist contained 0.07 grammes of methamphetamine. Also found inside the truck or the vehicle was an electronic scale.
You were arrested and cautioned for trafficking in dangerous drugs and possession of apparatus fit for smoking dangerous drugs and under caution, you admitted you took the dangerous drugs for your own consumption.
With your consent, two tests were conducted. One was a breath screening test conducted which showed 0 alcohol level. The other was a rapid oral fluid test which showed a positive reaction to methamphetamine. You were immediately arrested for drug driving and under caution you said, “Ah Sir, please give me a chance.”
You consented to providing a blood specimen for analysis. You were taken to the North Lantau Hospital where a blood specimen was taken and as stated in the charge, 0.38 microgrammes of methamphetamine was found per millilitre of blood. Also found in the vehicle or in your possession were three mobile phones and cash of about $10,000 and the car keys.
Defendant, at the time of commission of this offence, you were 35 years of age and are currently aged 36. You are married and have a 12-year-old daughter. You have been educated up to Form 2 level and you have four previous convictions of which two are related to drugs, being for possession of dangerous drugs in 2008 and 2009 to which sentence you were given, on both occasions sentenced to the drug addiction treatment centre. You were released from DATC in October 2009.
From the time you committed this offence, it was approximately two years since you were released from DATC. I am informed by your counsel, Mr Alvin Cheng, who has written a thorough written mitigation on your behalf that despite the time you spent in DATC, you remained a drug dependant on ‘Ice’.
Despite your dependency, however, you were able to maintain gainful employment as a truck driver earning approximately $30,000 a month. You further undertook a part-time truck driving job during the weekends to augment your earnings which typically amount to $3,000 to $5,000 a month.
Mr Cheng has provided your proof of income from the Inland Revenue Department. You have been, Mr Cheng says, grappling with a long-time standing drug addiction since the age of 18 and it is Mr Cheng’s submissions that a significant proportion of the drugs found in the lorry, the truck, were for your own consumption.
Originally, in mitigation, it was stated by Mr Cheng that 1.2 grammes or so was to be consumed by you per day. However, upon reading and Mr Cheng acknowledges at paragraph 14 of his submissions that the eight bags of ‘Ice’ that were found which weighed 1.2 grammes as stated therein as mitigation were intended solely for your personal consumption and each bag would last you one to two days to support your addiction. That would be approximately 0.6 grammes a day if it were to last two days.
That, in my view, is a more accurate reflection of an average daily dose of a regular drug user as is stipulated in Tam Yi Chun by the expert who gave evidence there in that case.
I accept in this case, defendant, that given the drug paraphernalia used for inhaling or smoking dangerous drugs found in your vehicle, and the fact that inhaling a bottle which had been used to inhale drugs was found with drugs in it and given the quantity and value of these drugs, and given your ability and general means and ability to pay for these drugs otherwise than by trafficking in them, and in particular your previous criminal record of possession of dangerous drugs, that a significant proportion of these drugs were for your own consumption. At least half were for your own consumption, if not more.
The value of drugs as quantified in the Summary of Facts was in the amount of $9,105 and your income was clearly over that, of some $30,000-odd a month.
I am informed by Mr Cheng that you had purchased a larger amount of drugs as this would be a cheaper way for you to buy drugs and I accept that it is so given the income that you were on and the value and quantity of drugs.
Consequently, following the case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, I am satisfied that as a significant proportion of at least 50 per cent of the drugs or more were for your own consumption and in the circumstances, I shall take a 20 per cent discount from the original notional starting point.
Turning to Count 1, the amount of drugs that you were trafficking in was 19.63 grammes of ‘Ice’. In following the guideline case of Tam Yi Chun, that amount falls within the bracket of 10 to 70 grammes which attracts a notional starting point of between 7 to 11 years’ imprisonment.
Apart from it being for your own consumption, clearly part of it was for trafficking to which you pleaded guilty. It is not known to me how you were trafficking in these drugs but given also the amount of paraphernalia found in your truck for consuming, as well as the paraphernalia for the purposes of trafficking, that is the numerous 97 smaller plastic bags, it can be said that either you were sharing these drugs, social sharing with others and/or obviously selling, given the amount of small plastic bags within your truck.
For that quantity of ‘Ice’, 19.63 grammes, had you been convicted after trial, I would have taken a starting point of 7 years and 6 months’ imprisonment had you been convicted after trial. However, given that a significant proportion were for your personal consumption, I shall discount that starting point as I mentioned earlier by 20 per cent. That would mean I take a starting point of 6 years’ imprisonment.
There are no aggravating factors in this case, save to what I have to say in respect of Count 2. The strongest mitigating factor you have in this case, defendant, is of course your early plea of guilty at the first opportunity to which you shall be awarded the one-third discount and on Count 1, you shall be sentenced to 4 years’ imprisonment.
In respect of Charge 2, defendant, you pleaded guilty to a drug driving charge and it is clear to me on the evidence that you were driving a truck, as a professional driver, ie earning a living from driving.
It goes without saying that being on the roads as a professional driver drug driving is highly dangerous and most irresponsible. This is a considerably dangerous to drug drive whilst you are under the influence of drugs. It is fortunate perhaps that you have not had an incident nor, as Mr Cheng has said, caused any personal injuries or caused any damage. At the time your vehicle was, however, parked. You had driven it to the forwarding centre, I am informed, to unload goods.
Your driving record does not seem to be too poor in that you have one conviction of careless driving in 2019 and you have a fine of driving in excessive speed by more than 15 counters but not more than 30 in 2016. So given the fact that you have been a professional driver, your record has not been too poor.
As I said, it is fortunate that that your record is as it is because I hear you have been a drug dependent from a very young age since 18. Somebody like you should not be driving on the road if you are drug dependent. Not only are you a danger to yourself but most importantly you are a danger to others road users.
For this offence, that is on Count 2, defendant, as Mr Cheng rightly says, you know the consequences of this offence and that shall be that you are disqualified for a period of 2 years from driving all types of vehicles. You shall be fined $4,000 and you are required to attend a driving improvement course under section 72A(1)(a) of the Road Traffic Ordinance.