COURT: The defendant pleaded guilty in the Magistrate’s Court to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and a second count of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the same ordinance. He was committed for sentence and today confirms his plea and agreement to the Summary of Facts.
The particulars of the two counts are as follows. On 3 March 2021, at the Ground Floor of Wang Man House, Cheung Wang Estate, Tsing Yi, New Territories, Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely, 125.24 grammes of methamphetamine hydrochloride, ‘Ice’. This amount of drugs were found in six plastic bags found in the front pocket of the defendant’s hoodie.
The particulars of the 2nd count are that on the same day, at Room 1015, 10th Floor of the same house, the defendant was in possession of 11.45 grammes of a crystalline solid containing 11.44 grammes of methamphetamine hydrochloride and 0.31 grammes of a solid containing 0.24 grammes of methamphetamine. Those drugs were found in the defendant’s bedroom during a house search.
The Summary of Facts are very straightforward. In the afternoon of the 3 March, the defendant was intercepted by Customs officers during an anti-narcotics operation in the lobby of his home on the ground floor. He was searched and the drugs of Count 1 were found on his person. The defendant told the arresting officers where he lived and he was immediately escorted upstairs to Room 1015 where his bedroom was searched.
Three bags containing the 11.44 grammes of ‘Ice’ were found together with a spoon and a straw. A plastic bottle used to inhale ‘Ice’ was also found containing 24 millilitres of liquid which upon drying contained the 0.24 grammes of methamphetamine. Those officers also found an electronic scale and a bundle of resealable plastic bags. Under caution, the defendant admitted that the drugs of both counts belonged to him for the purposes of self-consumption as did the plastic bottle modified for inhaling ‘Ice’ and he would consume about 2 grammes per day.
Mitigation
In mitigation, I have heard the defendant lived with his mother and younger brother in those premises. He is now 31 years old and single. At the time of his arrest, he was unemployed. He is not a man with a clear record and has three previous convictions all relating to dangerous drugs from between 2013 and 2017. I do not find his record an aggravating factor which would attract an enhancement of his sentence today.
The defendant does have a habit of consuming ‘Ice’. The urine test conducted upon his remand was positive for amphetamine. The defendant’s best mitigation is his plea of guilty at the earliest opportunity to both counts. I have heard and read mitigation from Ms Tsang who has said all she can say on behalf of the defendant in mitigation.
Trafficking Guidelines
I have considered all mitigation, facts of the case as well as tariff guidelines for both trafficking in methamphetamine hydrochloride as well as being in possession of the same drug for consumption.
The sentencing guidelines for ‘Ice’ is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and the starting point for trafficking between 70 and 300 grammes of ‘Ice’ is 11 to 15 years’ imprisonment. Therefore, trafficking in 125.24 grammes of ‘Ice’ in this case mathematically attracts a starting point of 11 years and 11 months’ imprisonment.
I have also considered the recent Court of Appeal case of HKSAR v Herry Jane Yusuph, CACC 93/2019, and the six-step approach in sentencing drug trafficking offences. I accept the submission that the defendant appears to be a mere courier or drug mule delivering drugs from A to B. Therefore, I intend to take the mathematical approach to a starting point. I will take a starting point of 11 years and 9 months’ imprisonment for Count 1.
As for Count 2, possession of a total of 11.64 grammes of ‘Ice’, I have taken into account the defendant is or was at the time of his arrest a drug abuser. 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.
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 abuser who could share or even sell those same drugs. A latent risk factor can justify an enhancement to a starting point. For this charge of possession of dangerous drugs, however, 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. I have also taken into consideration the sixth step of the Herry Jane Yusuph authority.
After the full discount is applied, I sentence the defendant to 7 years and 10 months’ imprisonment for Count 1 and 1 year imprisonment for Count 2.
Taking into account the totality principle, mitigation, and the facts of the case, I will order that the sentences for both counts to be served concurrently. Therefore, the defendant is sentenced to a total of 7 years and 10 months’ imprisonment.