COURT: The defendant pleaded guilty to two charges. Firstly, one count of possession of a dangerous drug involving 0.42 grammes of a crystalline solid containing 0.41 grammes of methamphetamine hydrochloride, which I will refer to as ‘Ice’ for short, that is “Count 1”. And secondly, one count of trafficking in a dangerous drug involving 65.19 grammes of a solid containing 58.2 grammes of ‘Ice’, which I will refer to as “Count 2”.
Summary of Facts
At around 5.01 pm on 25 May 2023, the defendant was intercepted by a police officer when he left Room 313, Yin Ping House, Long Ping Estate, Yuen Long, which I will refer to as “the Premises”. The defendant was then led inside the Premises and a body search was conducted upon the defendant.
Upon search, a transparent resealable plastic bag containing 0.42 grammes of a crystalline solid containing 0.41 grammes of ‘Ice’ was found inside the left front pocket of the defendant’s trousers. This formed the basis of Count 1.
The defendant was then arrested and under caution the defendant claimed that the ‘Ice’ was for his self‑consumption.
Upon the execution of a search warrant, a search was conducted in the Premises and the following items were found in the guest room:
(1) A round container containing 10 transparent resealable plastic bags containing a total of 65.1 grammes of a crystalline solid containing 58.2 grammes of ‘Ice’.
(2) One electronic scale.
(3) One ceramic plate containing 0.09 grammes of a crystalline solid containing ‘Ice’; and
(4) Large amount of resealable plastic bags. This formed the basis of Count 2.
The defendant was arrested again and under caution the defendant claimed that a large portion of the ‘Ice’ was for his self-consumption and he would sell a small portion of it if he was unable to consume them all.
The defendant also said in his video-recorded interview that the ‘Ice’ found in the Premises were bought from different persons on the street or park. If he had ‘Ice’ left after his consumption, he would sell them to someone unknown at a slightly higher price.
The estimated street value of the ‘Ice’ seized in the present case is $35,050.
Background of the Defendant and the Submissions in Mitigation
The defendant is now 48 years old. He finished education up to Form 4. At the time of the arrest, the defendant lived with his girlfriend. He was a logistics worker with an income of around $20,000 per month.
Amongst other conviction records, the defendant had three convictions for possession of dangerous drugs and four convictions for trafficking in dangerous drugs in the past. The latest record was a trafficking in dangerous drugs offence for which the defendant was convicted and sentenced on 4 June 2021 to 42 months’ imprisonment. He was released from prison on 14 November 2022 according to the antecedents statement.
In mitigation, Mr Fong relied on the defendant’s plea of guilty and his remorse which is expressed in the defendant’s own letter to the court. A letter written by the defendant’s previous employer described the defendant as a hardworking and reliable colleague.
During his remand, the defendant has obtained a Food Hygiene Manager Certificate. He has, I am told, become a committed member of a church and he is determined to rehabilitate and to abstain from drugs in the future. I have read the letters placed before me and taken their contents into account.
The Claim of Self-consumption
The principal matter advanced in mitigation is the defendant’s contention that about half of the 58.2 grammes of ‘Ice’ in Count 2, that is some 29.1 grammes, were for his own consumption. This contention is made on the basis of the defendant’s claim that his average daily consumption of ‘Ice’ was about 3 grammes per day and therefore 30 grammes would amount to about 10 days’ use.
Where a defendant who has pleaded guilty to trafficking contends that a significant proportion of the drug was for his own self-consumption the contention must be established to the court’s satisfaction on a proper factual and evidential basis supported by credible and reliable material. A mere assertion from the Bar table would not be sufficient, see: HKSAR v Cheng Wai Man [2019] 1 HKLRD 817 at paragraph 54 and HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 at paragraph 34.
The prosecution have helpfully produced an expert report from Dr Tse Man-li which provides this court with information about the average daily consumption of ‘Ice’ amongst established users. Dr Tse’s opinion is that, and I quote from paragraph 14 of her report:
“The average daily consumption among established ‘Ice’ abusers in Hong Kong is around 0.5 grammes. Heavy users may regularly use up to 1 gramme. A rare group of ultra-heavy users reported using 1 to 3 grammes on daily basis. I have encountered a few cases that claimed to use 2 to 3 grammes of ‘Ice’ every day before their presentation to the hospital and all of them were suffering from severe and debilitating complications from the drug. In my experience, majority of methamphetamine abusers in Hong Kong consume less than 1 gramme of the dangerous drug per day. Any consumption of methamphetamine above 1 gramme per day is dangerous and should unavoidably cause severe psychiatric or neurological symptoms to the users.”
I also quote from paragraph 18 of Dr Tse’s report:
“The average daily consumption of pure methamphetamine hydrochloride among established abusers in Hong Kong is 0.5 grammes and that for heavy users might go up to 1 gramme.”
The defendant indicated that he does not wish to challenge Dr Tse’s opinions. I accept that the defendant is clearly a habitual drug abuser given his urine tested positive for amphetamine, his lengthy drug-related criminal record and the fact that apparatus used for consuming ‘Ice’ were found on the premises.
However, given Dr Tse’s opinion that the average daily consumption for even heavy ‘Ice’ users is only 1 gramme and regular use above this dosage would cause severe psychiatric or neurological symptoms which the defendant has provided no evidence of, I indicated to Mr Fong during the hearing that I cannot accept the bare assertion that as much as half of the ‘Ice’ was for the defendant’s own consumption.
Mr Fong further took instructions and maintained that the defendant does not wish to give evidence and does not seek a Newton inquiry and invited this court to proceed on the basis of the information available in the papers before me.
On the papers before me, the defendant’s claim of an average daily consumption of 3 grammes per day is plainly incredible. However, I am willing to proceed on the basis that the defendant is a habitual ‘Ice’ user who can consume up to 1 gramme of ‘Ice’ per day.
Mr Fong further submitted that even on this basis an average daily consumption of up to 1 gramme per day for 30 days will still end up with half the drugs seized being for the defendant’s own consumption. However, this ignores the issue that the defendant’s monthly income was only $20,000 per month and the street value of the drugs in question amounted to around $35,000.
In the absence of further evidence and on the basis of the information available in the papers before me, I will proceed to consider the defendant’s sentence on Count 2 on the basis that a small portion of ‘Ice’ was for the defendant’s own consumption.
Sentencing Considerations in respect of Count 2
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186. I will therefore follow the six-step sentencing approach set out in Yusuph.
The first step is to identify the relevant guideline band or bracket applicable to the quantity of drugs concerned. The sentencing tariffs for trafficking in ‘Ice’ had recently been updated in HKSAR v Huang Ruifang [2025] 2 HKLRD 138. For quantities of 10 to 70 grammes, the sentencing band is 7 to 11 years’ imprisonment.
The second step is to assess the defendant’s role and culpability based upon the evidence. On the evidence, there is nothing to suggest that the defendant had any role beyond the culpability of an ordinary courier.
The third step of the sentencing exercise is to identify where in the relevant band the defendant falls into. The mathematically calculated starting point, in this case, for 58.2 grammes of ‘Ice’ would be 10 years and 2 months’ imprisonment after rounding down.
The fourth step is to consider whether there are any aggravating factors which might enhance the starting point. The defendant has four convictions for trafficking in dangerous drugs, with the last conviction in June 2021 for which he was sentenced to 42 months’ imprisonment. The present offences were committed in May 2023, which was relatively shortly after his release from prison.
It is well established that the existence of a prior conviction for drug trafficking is an aggravating factor for the present purposes. A previous conviction for trafficking is a valid aggravating factor going to the enhancement of the starting point, the extent of which is a matter for the sentencing judge’s discretion, there being no fixed or numerical enhancement for this factor, see: HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186 at paragraph 70.
Given the defendant’s persistency in this kind of offending, I consider that an enhancement of 6 months’ imprisonment is fully justified. This brings the starting point for the sentence on Count 2 to 10 years and 8 months’ imprisonment.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence, bearing in mind that personal circumstances for this offence generally count for little.
I have borne in mind the observations of the Court of Appeal in Yusuph at paragraph 44, where the Court of Appeal stressed the seriousness of drug trafficking and the problems that it brings to families and communities. Accordingly, the defendant’s personal circumstances are rarely a mitigating factor.
The main mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount of the starting point, which brings the sentence down to 7 years and 1 month’s imprisonment after rounding down.
In respect of the claim of self-consumption, where the court is satisfied that a significant proportion of the drugs were for self-consumption, the range for discount would be between 10 per cent and 25 per cent.
Where only part of the drugs were for self-consumption rather than a significant part, the court still has a discretion to decide whether the defendant should be given any reduction in sentence for that reason and the extent of it according to the individual circumstances of each case, see: HKSAR v Cheng Wai Man [2019] 1 HKLRD 817 at paragraph 53 and HKSAR v Kong Tat Lung [2017] 6 HKC 448 at paragraphs 58 and 59 as well as paragraphs 68 to 70.
Given my finding that only a small portion of the ‘Ice’ in the present case was for the defendant’s own consumption and the fact that the defendant was a habitual ‘Ice’ user, I consider a further discount of 3 months’ imprisonment to be appropriate. For Count 2, the defendant’s sentence will come down to 6 years and 10 months’ imprisonment.
Sentencing in respect of Count 1
Regarding Count 1, concerning the possession of 0.41 grammes of ‘Ice’, I will adopt a starting point of 6 months’ imprisonment, reduced to 4 months on account of the defendant’s plea to be served concurrently with the sentence on Count 2.
So defendant, I sentence you to a term of 6 years and 10 months’ imprisonment.
