COURT: The defendant pleads guilty today to one count of trafficking in dangerous drugs. On 5 August 2022, outside 236 Yu Chau Street, in Kowloon, the defendant unlawfully trafficked in 12.7 grammes of a crystalline solid containing 12.5 grammes of methamphetamine hydrochloride.
On 26 June 2023, the defendant pleaded not guilty at the committal proceedings. The case was committed to the Court of First Instance for trial. The defendant then decided he would plead guilty and a request for a plea and sentence hearing was made dated 28 July 2023. No trial date had been set down prior to this indication.
The facts the defendant admitted are straightforward. At about 1.15 in the morning on 5 August 2022, the defendant was stopped acting suspiciously. He was searched and the arresting officer found a transparent resealable plastic bag containing methamphetamine hydrochloride between his underpants and his trousers.
The defendant was arrested, cautioned and later said in a video-recorded interview that he picked up the bag of ‘Ice’ outside his home. And then he said he picked it up inside the building at 236 Yu Chau Street when he went to find his friend who lived there. He picked it up knowing it was ‘Ice’ and intended to keep it for his own self-consumption. He could not provide any details of that friend.
His home was searched on the same day and no incriminating items were found including paraphernalia to consume ‘Ice’ such as an ‘Ice’ bottle or an ‘Ice’ pipe. The estimated market price at that time of that amount of ‘Ice’ was $7,468. The defendant now admits knowingly possessing the ‘Ice’ for the purposes of trafficking.
Mitigation
Mr Lau has said all he can say on behalf of the defendant in mitigation. I have received mitigation in advance. The defendant is now 33 years old and a Vietnamese national who is here in Hong Kong as a recognisance Form 8 holder. He has a wife and two children at home in Vietnam.
The defendant is not a man with a clear record. He had three previous convictions when arrested; none related to dangerous drugs. After his arrest for this offence and in July this year, he was sentenced to 257 days’ imprisonment for remaining in Hong Kong illegally having entered unlawfully.
It has been suggested that part of the ‘Ice’ seized was for his own consumption. After he was remanded in custody, he tested positive for amphetamine. It has been submitted in mitigation that the defendant should be afforded an additional discount for this factor.
Sentencing Guidelines
The Court of Appeal has set down guidelines for sentencing those who traffic in ‘Ice’ in HKSAR v Tam Yi Chun, CACC 524/2011. In that authority, the starting point for trafficking between 10 to 70 grammes of ‘Ice’ is between 7 and 11 years’ imprisonment. Here, the total amount of ‘Ice’ is 12.5 grammes which mathematically speaking would attract a starting point of 7 years and 2 months’ imprisonment.
I have considered the approach to the sentence of trafficking dangerous drugs as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I have considered the six-step sentencing approach set out in that authority. In this case, I accept and am satisfied that the defendant was a courier. Therefore his sentence is to be determined by the relevant tariffs and the quantity of dangerous drugs involved. I will take a starting point of 7 years’ imprisonment.
There is one aggravating factor here and that is the fact that the defendant is a Form 8 holder and not a Hong Kong resident. Whilst waiting for his claim for asylum to be verified, he has committed a very serious offence. I have considered the fact it is his first drug conviction as well as the amount involved here. I enhance that starting point of 7 years by 6 months, taking it to 7 years and 6 months’ imprisonment.
I see no other mitigation of weight or substance to consider any discount other than that for a plea. There is no evidence that a significant proportion of the drugs was for self-consumption and therefore the submission in mitigation does not merit an additional discount.
There was no hearing prior to sentence to support a submission that a significant proportion of the drugs was for his self-consumption. He may have tested positive when remanded after his arrest but no obvious paraphernalia was found at his home for consuming ‘Ice’ nor does he have any previous drug-related convictions. Moreover, I am not satisfied that the portion of drugs claimed for self-consumption is of a significant proportion which is required before the sentencing court should or would consider exercising its discretion to reduce the starting point to reflect this factor.
The defendant did not plead guilty at the earliest opportunity, that is at the committal proceedings stage. However, he did change his plea not long after and certainly before a trial date was set down and manpower wasted in the preparation of the trial. I am therefore prepared to consider a full one-third discount despite this situation. At this stage, I also take into consideration the sixth step of the Herry Jane Yusuph authority.
I will apply that discount of one-third to the starting point of 7 years and 6 months’ imprisonment. After that discount is applied, I sentence the defendant to 5 years’ imprisonment.
Today, I have been told you were sentenced in July 2023 for remaining in Hong Kong without authority having landed unlawfully. I have considered the sentence. I have considered your potential release date. I have also considered the nature of that offence is unrelated and very different to this charge of trafficking in dangerous drugs.
So I would order this sentence I impose today to be served consecutively to the sentence imposed in STCC 554/2000.