COURT: The defendant pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. The particulars is that on 22 September 2021, at Kimberley Road in Tsim Sha Tsui, he trafficked in 37.33 grammes of a crystalline solid containing 33.16 grammes of methamphetamine hydrochloride.
He pleaded guilty at the beginning of the committal proceedings in the Magistrates’ Court. He also, on that occasion, admitted to a set of Summary of Facts dated 31 May 2023.
According to the facts, he was intercepted at around 12.45 on 22 September 2021 by police in Kimberley Road. He was stopped because police saw him standing at the junction and looking around furtively.
Upon search, the following items were found on him. One green bag containing seven plastic packets containing seven plastic bags which contained a total of 10.73 grammes of a crystalline solid containing 10.16 grammes of methamphetamine hydrochloride; another green bag containing one plastic packet containing one plastic bag containing 13.3 grammes of a crystalline solid containing 12.2 grammes of methamphetamine hydrochloride; further, a beige bag containing one plastic bag containing 13.3 grammes of a crystalline solid containing 10.8 grammes of methamphetamine hydrochloride. In total, 37.33 grammes of a crystalline solid containing 33.16 grammes of methamphetamine hydrochloride.
The estimated street value is $30,000-odd.
Upon further search, a mobile phone and some cash were found on him. He was arrested for trafficking in dangerous drugs and during initial inquiry, he admitted that he received $100 to bring dangerous drugs for the others. He further said he had no food to eat so he accepted the $100 to help others.
Subsequently, the defendant said in a video-recorded interview as he was a Form 8 holder, he could not work. He had no money, sleep on the street and eating only a meal a day.
On 21 September, at around 11 in the evening, a male instructed him to deliver drugs for a reward of $100. Upon instruction, he picked up the drugs in Sham Shui Po and went to Knutsford Terrace by MTR. Of the money found on him, he said only $26-odd is his. He admitted he know that what he was being asked to deliver was dangerous drugs although he do not know what types of drugs it was.
You were born in China in 1989 and is now 34 years of age and was 32 at the time of the offence. You came to Hong Kong on 10 July and was a Form 8 holder at the time of the offence. As a Form 8 holder, you were unemployed at the time and it was said that you needed money for food which drove you to accept the offer for a very small amount of money, namely, $100 to deliver the drugs.
According to Tam Yi Chun [2014] 3 HKLRD 691, for ‘Ice’ between 10 to 70 grammes, the term of imprisonment is in the range of 7 to 11 years’ imprisonment. For the quantity of drugs in the count, namely 33.16 grammes, I adopt a starting point of 8½ years in view of your role as a courier, which is the lowest category of culpability as said in Yusuph.
It was said by the court on many occasions for a Form 8 holder who committed offences in Hong Kong, the court will enhance the sentence, for example, in the case of Ali Saif [2018] HKCA 358.
Although the Court of Appeal in Ali Saif said that it is neither prudent nor possible to issue guidelines in respect of enhancement for Form 8 holders and should leave it to the discretion of individual sentencer. The Court of Appeal said however we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for the serious offence of trafficking in dangerous drugs in any case before the District or High Court. The Court of Appeal in that case do not disturb an enhancement of 12 months from an initial starting point of 9 years and 9 months.
It is urged upon me on your behalf that in the circumstances of this case, I should not enhance the sentence. It was said, and I accepted, that you came to Hong Kong and was arrested and was about to be deported from Hong Kong. While you were waiting for deportation, you were granted by the Immigration Department on your own recognisance when released, waiting for deportation. As you did not make any torture claim, though you are released on your own recognisance by the Immigration Department, apparently there is no subsidies from the government.
I also accepted in view of the personal property which I have examined, I accepted that you are a street sleeper. I also accept that in your circumstances, you are in need of food or in need of money for food. I, therefore, in the circumstances of this case, am prepared to temper justice with mercy and not enhance the sentence.
For your plea of guilty, I will give you a full one-third discount. If my calculation is right, it should be 5 years and 8 months.