COURT: The defendant has pleaded guilty to one charge of possession of dangerous drugs in the Magistrates’ Court. He pleaded guilty to possessing 1.28 grammes of a crystalline solid containing 1.28 grammes of methamphetamine hydrochloride, the 1st Charge. He also pleaded guilty to trafficking in 35.99 grammes of a crystalline solid containing 35.88 of the same drug, methamphetamine hydrochloride, the 2nd Charge. He was committed for sentence on 16 November 2023, and today confirms his pleas and agreement to the Summary of Facts.
Summary of Facts
On 17 January 2022, the defendant was driving a vehicle along North Lantau Highway (westbound) when the police noticed his vehicle driving in an erratic manner. The police pulled over the vehicle and requested the defendant to get out. There was a front seat passenger as well.
The defendant was searched and in his pocket, the police found the drugs of the 1st Charge in a plastic bag. Upon a search of the vehicle, they found the drugs of the 2nd Charge in various places. In the offside front door
compartment, they found a bottle containing 10 plastic bags containing a quantity of ‘Ice’. They also found more ‘Ice’ in a console armrest and in a bag on the rear passenger seat. They also found apparatus that could be used for inhaling ‘Ice’.
The total estimated street value of the drugs was approximately $26,051.73. The defendant was the registered owner of the vehicle. He was arrested and under caution, he said everything in the vehicle including all the drugs belonged to him, having purchased it for $7,000. He now admits to trafficking in the drugs found in the vehicle.
Mitigation
The defendant is now 59 years old and when arrested was a construction site worker. He is not a man with a clear record. He has a conviction for an immigration related offence and convicted in 2021. He was sentenced to 10 days’ imprisonment suspended for 12 months on 30 July 2021 for a breach of a condition of stay. He was arrested for this offence just over six months later. He is in breach of that suspended sentence. He has no drug-related convictions.
Mr Lam has said all he can say on behalf of the defendant in mitigation. His best mitigation is his plea of guilty at the earliest opportunity.
Sentencing
I have considered the six-step approach to sentencing those that traffic in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, that was very recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.
In the approach to sentencing, six steps have been identified which the court should take, such as assessing the gravity of the offence and applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors, and lastly passing a sentence which is fair, just and balanced in all the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug seized. The tariff for the drug ‘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
35.88 grammes of ‘Ice’ in this case would mathematically attract a starting point of 8 years and 9 months’ imprisonment.
The second step of the six steps is to assess the defendant’s role and culpability based upon the evidence. The defendant was arrested driving and all the drugs were in his vehicle. In the absence of any evidence to the contrary, I am going to treat him as a drug courier.
Therefore, going on to take into account the third step, his sentence is to be determined by the relevant tariffs and the quantity of dangerous drugs involved. That would be a starting point of 8 years and 9 months’ imprisonment.
The fourth and fifth steps require me to consider whether there are any aggravating factors or any exceptional mitigating factors. I do not find any mitigating factors other than his plea of guilty at the earliest opportunity.
The defendant did plead guilty at the earliest opportunity and is therefore entitled to a one-third discount. Therefore, the starting point of 8 years and 9 months is reduced to 5 years and 10 months after that discount is applied.
The last step to take is to stand back and look at the overall sentence in order to ensure that it is a fair, just, and balanced sentence in all of the circumstances of not only the offence but also the defendant. Here, I see no issue.
Accordingly, defendant is sentenced to 5 years and 10 months’ imprisonment for trafficking in dangerous drugs in the 2nd Charge.
As for the 1st Charge, possession of 1.28 grammes of ‘Ice’. I have taken into account 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 this case, the drug was possessed by a drug user arrested with another person in the same vehicle. Latent risk factor can justify an enhancement to a starting point. For this charge of possession of dangerous drugs, I will take a starting point of 18 months’ imprisonment. After a one-third discount is applied, the defendant is sentenced to 1 year’s imprisonment for the 1st Charge.
I repeat, defendant, for the 1st Charge is sentenced 1 year’s imprisonment. For the 2nd Charge, the defendant is sentenced to 5 years and 10 months’ imprisonment. Taking into account the totality principle and the facts, I will order the sentences for both charges to be served concurrently.
I will not activate the suspended sentence. It was of a very different nature to these offences.
According, the defendant is sentenced to a total of 5 years and 10 months’ imprisonment.