COURT: The defendant pleaded guilty before a magistrate to two charges of trafficking in a dangerous drug and was committed before me for sentence. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs involved, personal background of the defendant, and mitigation put forward on his behalf. I have also had regard to the sentencing approach as laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, and HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
The facts of the case may be summarised as follows. On 31 August 2023, the defendant was intercepted when he used a key to open the door of a car parked at a car park of a public housing estate. Nothing illegal was found on the car, but dangerous drug was found concealed inside the underpants the defendant was wearing.
The drug was a total of 16.7 grammes of a crystalline solid containing 16.7 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’. This is the subject matter of Charge 1.
The defendant was arrested. Under caution he claimed the two packets case of stuff were for his own consumption. The defendant was then brought back to his home which was in the same public housing estate. There further dangerous drugs was found. The total quantity was 352.57 grammes of a crystalline solid containing 343.21 grammes of methamphetamine hydrochloride. This is the subject matter of Charge 2. Under caution, the defendant said all the drugs in the flat were for his own consumption.
In a subsequent video-recorded interview, he made further admissions, including that he had bought the dangerous drug from a friend and he had been in the habit of consuming ‘Ice’. He also said the ‘Ice’ on him was for his own consumption, and as regards the ‘Ice’ found in the flat, part was for his own consumption and part to be sold to other people.
I was told that the defendant is now 52 years of age. He received education up to Form 2. He is divorced. He worked as a delivery man and provided financial support to his mother who is more than 70 years old. He started to be unemployed since 2022.
The defendant has a bad criminal record. He had on two occasions been convicted of the offence of trafficking in a dangerous drug. The first conviction was in 1996, and he was sentenced to a total of 9 years’ imprisonment for the two charges. He was convicted again in 2023, for which a sentence of 50 months was imposed. The defendant had committed other offences such as common assault, blackmail, and bookmaking.
In mitigation, learned counsel for the defence, Mr Marco Li, stressed that the defendant had pleaded guilty before a magistrate and he told the court that the defendant has been drug dependent since young and he is now very remorseful. Mr Li also told the court that the defendant committed the present offence under great financial pressure, as he had to pay the medical expenses of his mother who was to undergo an eye surgery.
The drug involved in this case was ‘Ice’. Having regard to the observation of the Court of Final Appeal in Seabrook v HKSAR [1999] 2 HKCFAR 184, I am of the view that the tariff set out in the recent case of HKSAR v Huang Ruifang (No. 3) [2025] 2 HKLRD 138 should be applied.
In the circumstances of this case, I see no reason to depart from the tariff. Further, I am of the view that the ultimate overall sentence in this case should be decided in the light of the total quantity of narcotics involved in this case which was 359.9 grammes of ‘Ice’.
As regards the role of the defendant, I accept the submission of Mr Li that whilst he was not at the bottom of the hierarchy, the role of the defendant was relatively minor.
Criminal record shows that the defendant had been convicted twice for the offence of trafficking in dangerous drugs, involving three charges. Moreover, the defendant convicted the present case while he was on bail for another case, DCCC 672/2022. Whilst these are aggravating factors, I bear in mind the submission of Mr Li that: one, the first similar conviction which involved two charges, took place in 1996, almost 30 years ago; and two, the sentence imposed in DCCC 672/2022 should be taken into account.
In this regard, I note that when the defendant committed the present offence on 31 August 2023, he had not yet been convicted in DCCC 672/2022, which took place on 1 November 2023.
In all the circumstances of the present case, having regard to submission of learned counsel, I have warned myself against the risk of excessive enhancement. I enhance the starting point of about 6 months, mostly for the reason that the present offence was committed while the defendant was on bail for another case involving the same offence, and the present case involved much higher quantity of drug than the earlier case.
The defendant relied solely on submission of counsel, claimed that some quantity of the ‘Ice’ found was the intended for his own consumption. The defendant did not testify on this aspect. He, however, maintained this stance as soon as he was arrested and said in the video-recorded interview the following:
(1) he had the habit of consuming ‘Ice’ by using a glass bottle;
(2) he had been in the habit for five to six years;
(3) he would consume four times a day.
In consideration of this assertion, I have regard to cases such as HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, and HKSAR v Tan Xiu Yun [2015] 5 HKLRD 872, and take into account the following matters:
(1) the defendant made this assertion immediately upon finding of the drug;
(2) most of the drug was found at the home of the defendant;
(3) previous convictions of the defendant;
(4) the estimated cost of the drug; and
(5) information which goes to suggest that the means of the defendant was limited.
In all the circumstances, I am prepared to accept that a small quantity of the ‘Ice’ seized would have been intended for own consumption of the defendant.
It was held by the Court of Appeal in cases like HKSAR v Tam Ling Yuen, CACC 159/2015, HKSAR v Yeung Shek Yung, CACC 314/2016, and Cheung Wai Man, CACC 258/2017 that a discount for this reason should normally only be given when a significant proportion of the drug was intended for self-consumption.
Besides, I have to take into account that even for the offence of possession of dangerous drug, a sentence of custodial nature would be imposed having regard to the quantity asserted.
Moreover, my assessment is that the latent risk for whatever quantity of drug the defendant had intended to reserve for self-assumption was very high.
In all the circumstances, I am of the view that the circumstances in the present case do not justify a downward adjustment of the sentence for the reason of self-consumption.
Up to this state of consideration, in my judgment, taking into account the enhancement, the notional overall sentence after trial for the two charges should be 16 years.
Applying the same consideration, I adopt the following notional sentence after trial for the individual charges: Charge 1, 7 years and 9 months; and Charge 2, 15 years and 9 months.
The defendant pleaded guilty before a magistrate and for this he is entitled to a one-third discount for each charge.
Having considered the whole circumstances, including what is said ably on his behalf by Mr Li, in my judgment this is the extent of discount the defendant is entitled to in the present case.
As said, the defendant committed the present offence while he was on bail for DCCC 672/2022. He eventually was sentenced to 15 months’ imprisonment for the trafficking charge in that case. In that case, the learned judge gave the defendant 25 per cent discount for a late guilty plea and disregarded his previous conviction. I also note that in that case, the learned District Judge applied the old tariff in Tam Yi Chun, but I also note that the new tariff is indeed the same.
I agree to the submission of Mr Li that the sentence in that case should be taken into account as if both cases are heard together.
Having regard to the case of HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and HKSAR v Chan Fei Lung [2025](2022?) 5 HKLRD 968, I do not consider it appropriate to decide and aggregate his sentence for the two cases by reference to the total quantity of drug, since the two cases arose from separate and distinct circumstances and on different days.
Having regard to totality principle, in my judgment, it is appropriate to make an order which has a result that 18 months of the sentence imposed in the District Court case to run concurrently with the sentences imposed in the present case. It follows that the defendant is to serve an aggregate sentence of 13 years and 4 months for the two cases.
In my judgment, this overall sentence appropriately reflects the overall culpability of a defendant and is a fair, just, and balanced one in all the circumstances of the cases and of the defendant.
By reasons of the matters aforesaid, I sentence to the following immediate imprisonment terms: Charge 1, 5 years and 2 months; Charge 2, 12½ years. I order 2 months imposed on Charge 1 to run consecutively to the sentence imposed on Charge 2.
Defendant, you are to serve a total sentence of 12 years and 8 months for the two charges in this case.
Further, I order 110 months of the aggregate sentence of the present case to run consecutively to the sentence imposed in DCCC 627/2022.