COURT: The defendant was charged with one count of trafficking in dangerous drugs. It is alleged that she unlawfully trafficked in dangerous drugs, namely, 70.26 grammes of a crystalline solid containing 70.26 grammes of methamphetamine hydrochloride, commonly known as “Ice”, and 0.53 grammes of a solid containing 0.47 grammes of cocaine, outside Nos 137-141 Cheung Sha Wan Road, Sham Shui Po, Kowloon in Hong Kong. She pleaded guilty at the Magistrates’ Court in August this year and was committed for sentence before me.
The facts giving rise to the offence are as follows: On 2 July 2023, at around 10.14 pm, the defendant was intercepted by a patrolling police officer at the subject location as she was seen acting furtively.
Upon search of the defendant, the following items were seized: from the right pocket of her pants, two plastic bags containing a total of 1.36 grammes of a crystalline solid containing 1.36 grammes of “Ice”; from the left pocket of her pants, another plastic bag containing three plastic packets containing a total of 0.53 grammes of a solid containing 0.47 grammes of cocaine; and from her shopping bag, a pouch containing three plastic packets containing a total of 68.9 grammes of a crystalline solid containing 68.9 grammes of “Ice”, each wrapped in a piece of tissue paper, as well as $9,500 cash. The total quantity of narcotics seized from the defendant was 70.26 grammes of “Ice” and 0.47 grammes of cocaine.
Upon arrest and under caution, the defendant claimed that all of the dangerous drugs seized were for her own consumption.
On further search conducted on the defendant back in the police station, the following items were found: $5,163 cash from the cross-body bag carried by the defendant and two mobile phones with SIM cards.
The defendant made admissions under caution in subsequent video-recorded interview. She maintained that the drugs seized were for her own consumption. She stated further that both the “Ice” and the cocaine found from her pants, from the pockets of her pants, were for her own consumption; she consumed about 1.75 grammes of “Ice” and/or 0.6 grammes of cocaine on a daily basis.
As regards the pouch containing the rest of the “Ice”, she claimed that she had picked that up from an unknown place and the drugs therein were also for her own consumption. She claimed that the money found on her person in the cross-body bag, namely the $5,163 cash, belonged to her. She told the police officer that she received a monthly CSSA allowance of around HK$10,000. As regards the cash found in the pouch inside the shopping bag, namely the $9,500 cash, she claimed that she did not know to whom the cash belonged.
She claimed that she was a drug addict and had the habit of consuming “Ice”, cocaine and heroin.
The estimated total street value of the “Ice” seized is HK$40,118, and that of the cocaine is $570 in powder form or $633 in crack cocaine form.
The defendant now admits and accepts that she was unlawfully trafficking in all of the dangerous drugs in the present case.
The defendant’s background
The defendant is now 38 years old. She was born in Hong Kong and attained up to Form 2 education level. She has been married twice. Her first marriage was at the age of 16 in 2002. She later separated from her former husband in 2004 and eventually divorced in 2012. She is a mother of two children. Her son is now aged 22 and her daughter is now aged 21, both born out of wedlock during her first marriage. The children have been residing with the father since the separation and divorce.
In around mid-2023, the defendant remarried, and her current husband, a Mr Huang, is a PRC citizen who mainly resides in the Mainland China.
Before the offence, the defendant used to work as a full-time waitress in 2018 earning around HK$20,000 a month. According to what she stated in the video-recorded interview and as set out in her antecedents statement, the defendant had been unemployed and was on CSSA social security assistance before her arrest for the present offence.
The defendant has seven previous criminal convictions, three of which are drug related, including smoking and injecting dangerous drugs in 2008 when the defendant was about 22 years old, possession of dangerous drugs in 2013 when the defendant was about 27 years old, for which offences she was fined $1,500 and sentenced to Drug Addiction Treatment Centre respectively. She has a previous conviction for trafficking in dangerous drugs in 2012, which was 12 years ago when she was about 26 years old, for which offence she was sentenced to 22 months’ imprisonment. These offences, as set out in the mitigation submission by Mr Ng on her behalf, were committed in circumstances which led to the separation and the divorce of the defendant from her former husband.
As regards the other convictions of the defendant, there are four previous convictions for theft and the defendant was sentenced to the Drug Addiction Treatment for those four offences, the last of which was in December 2014.
In this regard I am told by Mr Ng that subsequent to the Drug Addiction Treatment Centre remand, the defendant had successfully ceased her drug abuse with the assistance of rehabilitation and religious organisations. However, regrettably, in 2016, the defendant became acquainted and cohabited with a man called Ah Fai, only to later discover that Ah Fai was a drug addict. The defendant tried to assist Ah Fai to overcome his addiction by disposing of his drugs and monitoring Ah Fai’s addiction by the use of urine testing kits. As their relationship deteriorated, culminating in their separation in 2022, the defendant lost her employment as a waitress, suffered from depression, which led ultimately to her relapse to the use of dangerous drugs. The court is sympathetic about those circumstances.
In mitigation, Mr Ng, counsel for the defendant, urged me to accept that the defendant was a mere courier, falling within the lowest end of the hierarchy in terms of drug trafficking offences. It was said that the defendant was a drug addict of “Ice”, cocaine and heroin, and that she committed the present offence in order to fund her drug habit.
Mr Ng invites me to consider that a small part of the dangerous drugs seized in this case was intended for the defendant’s own consumption. Mr Ng also urges me to give the full one-third discount on account of the defendant’s timely plea.
I am also told that the defendant is remorseful for her commission of the present offence and that her current husband, Mr Huang, has been fully supportive of her, and will support her in the course of her rehabilitation. The court has been provided with a letter written by the husband, Mr Huang, who is also present in court today to show his support, as well as a letter written by the defendant herself.
The defendant has also produced to me a certificate of attainment dated January 5, 2024, showing that she has completed a food hygiene certificate for a hygiene manager course organised by the Integrated Vocational Development Centre in December 2023, that is, after her commission of the present offence and during her remand. These are said to support the defendant’s remorse and her determination to turn over a new leaf.
The court is also told that the couple, that is the defendant and her current husband, Mr Huang, have planned to move to Mainland China for good after the defendant’s ultimate release from prison so that the defendant could distance herself from drug influence and embrace a simpler life.
Sympathetic as the court is with these circumstances, the courts have been consistently reminded that personal circumstances such as these do not bear much weight in terms of mitigation in relation to an offence as serious as the present case, namely trafficking in large quantities of drugs.
The courts of Hong Kong have indeed adopted a serious view in handling cases of drug trafficking, in particular for hard drugs such as “Ice” and cocaine. The six-step approach in relation to sentencing drug trafficking offences has been set out in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, as complemented by HKSAR v Lee Ming Ho [2024] HKCA 150, which I shall not repeat.
The applicable sentencing tariffs for “Ice” is set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and HKSAR v Abdallah [2009] 2 HKLRD 437. A quantity of between 70 grammes to 300 grammes of “Ice” warrants a starting point of 11 to 15 years.
For cocaine, the relevant sentencing tariffs are set out in R v Lau Tak Ming & Ors [1990] 2 HKLR 370 read in conjunction with Attorney General v Pedro Nel Rojas [1994] 1 HKC 342. For a quantity of up to 10 grammes of cocaine, a starting point of 2 to 5 years’ imprisonment is warranted.
On a strict arithmetic calculation, a starting point for the quantity of “Ice” involved in this case, namely 70.26 grammes of narcotics, is 11 years, and that for 0.47 grammes of cocaine is 2 years and 2 months.
Where more than one drug is involved, I consider it fit to adopt the combined approach in the circumstance of the present case. As “Ice” is the more potent drug and the quantity of cocaine is comparatively small and minimal, I take the view that justice is best served by adopting a starting point of 11 years, and I will cross-check this starting point against the result of the three tests, namely the absurdity test, the conversion test and the ratio test, as illustrated in HKSAR v Chan Yuk Leong, CACC 318/2013.
For the absurdity test, the starting point would be 11 years. For the conversion test, if one were to convert all the drugs into “Ice”, the starting point would also be around 11 years. If one were to convert all the drugs into cocaine, a similar starting point would be derived. For the ratio test, the starting point produced would also be rounded up to 11 years.
In the circumstance of this case, I take the view that a starting point of 11 years, cross-checked against the result of the three tests as I have just mentioned, would produce a just outcome.
As to the defendant’s role and culpability, I accept Mr Ng’s submission that her role and culpability was one of a mere courier. In the absence of any evidence establishing that the defendant was the actual and direct trafficker, I do not consider it necessary to enhance this sentence on the basis of the defendant’s role.
Whilst more than one type of narcotics are involved in this case, and it has been said that when a combination of narcotics are involved and intended to be sold together or consumed in combination by drug abusers, which could in turn lead to a far more dangerous and potent concoction, an enhancement of sentence may be warranted to take account of this fact as well as the availability or the ability of more than one types of drugs to reach a wider market (see Chan Yuk Leong at paragraph 23 to 25; HKSAR v Wong Wang Hing [2023] HKCA 729 at paragraph 10 and 11; and HKSAR v Husain Saddam [2018] HKCA 55 at paragraph 22).
That said, noting the small quantity of cocaine involved in the present case, I take the view that the risk of such drugs, as seized, being capable of reaching a wider market or that the combined use of the drugs would lead to a far more dangerous and potent concoction is, in the circumstance of this case, not that significant. For that reason, I will not enhance the starting point further on account of the fact that more than one type of drugs are seized.
As regards the defendant’s previous criminal conviction for trafficking in dangerous drugs, whilst the court is entitled to enhance the sentence on account of that aggravating feature, having considered that that trafficking conviction was 12 years before her commission of the current offence and that the defendant’s last conviction goes back to 10 years ago, I will not enhance the sentence on account of her previous conviction for trafficking.
As for other mitigating factors, it has been submitted on behalf of the defendant that she possessed part of the drugs for her own consumption.
In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, it was held that, depending on the circumstances, the discount for self-consumption may fall somewhere between 10 per cent to 25 per cent of the basic starting point. This range of discount is only applicable where it is established that a significant proportion of the drugs seized was for self-consumption.
Having said that, as held in HKSAR v Kong Tat Lung, CACC 27/2016, at paragraph 69:
“Where the position of the defendant is that only part of the dangerous drug rather than a substantial part of the dangerous drug was for his own consumption, the court can then according to the circumstances in individual cases exercise its discretion by deciding whether the defendant should be given any reduction in sentence for that reason and the extent of that reduction.”
At paragraph 70:
“it is entirely in the judge’s discretion according to the circumstances of each individual case whether to give the defendant any reduction in sentence and the extent of that reduction on the basis that the defendant intended to use a small part of the dangerous drug for his own consumption.”
It is thus clear that the court has a discretion to discount a sentence to reflect the fact that a less than significant proportion of drugs was for the defendant’s own consumption. I take into account what the defendant said in her video-recorded interview, and the quantity of “Ice” found from the pockets of her pants, namely the 1.36 grammes of “Ice”, and 0.47 grammes of cocaine, which correspond to what she claimed to be her daily consumption of the two types of drugs.
Furthermore, her urine test result supports her claim for self-consumption as quantities of amphetamine, cocaine and opiate or morphine were found to be present in her urine upon her admission to the CSD custody on 5 July 2023, which was three days after her arrest.
On account of these facts, I am prepared to accept her claim that a small quantity of “Ice” and cocaine seized were for her own consumption, namely the “Ice” and cocaine found on her person, in the pockets of her pants. I am prepared to exercise my discretion to reduce 3 months from the starting point for sentence.
For her timely and early plea of guilty, she will be given the full one-third discount.
Apart from these, there are no other mitigating circumstances to justify any further discount of sentence.
The final sentence I would impose is thus as follows. Adopting 11 years as a starting point, I would reduce 3 months for her self-consumption, arriving at 10 years and 9 months.
Given the one-third discount for the early plea, the final sentence would be reduced to 7 years and 2 months. This sentence of 7 years and 2 months is fair, just and balanced in all the circumstances of both the offence and the offender.
So, defendant, you are sentenced to a term of 7 years and 2 months’ imprisonment.