CRIMINAL CASE NO. 50 OF 2012
The particulars of the charge are that on 29 August 2011 at the Ground Floor of Kin Ching House, Kin Ming Estate, Tseung Kwan O in the New Territories, he trafficked in 23.83 grammes of a crystalline solid containing 23.44 grammes of methamphetamine hydrochloride, a dangerous drug commonly referred to as “Ice”.
The Summary of Facts admitted by the defendant establishes that some time after 10.30 pm on 29 August 2011, police officers saw the defendant alight from a taxi opposite the rear door of Kin Ching House. He was intercepted by police officers as he entered the lift.
He was searched, and in the pocket of his trousers they found two transparent resealable plastic bags. The police arrested him for drug trafficking. His response was to deny that he was trafficking. He said, “Ah Sir, these two packets of dangerous drugs ‘Ice’ were for my own consumption.”
The crystalline solid was determined to be 23.44 grammes of methamphetamine hydrochloride with an agreed market value in excess of $18,000.
The defendant was also found to be in possession of $3,279 in cash.
When later interviewed by the police, he told them that he had purchased the dangerous drugs that evening for $8,000 and he was then on his way home when apprehended. The money that he had used to purchase the dangerous drugs that evening had been repaid to him by friends.
The defendant lived in Kin Ching House. His premises were searched, and nothing of any significance was found. The defendant at the time of his arrest was unemployed and had a net income from CSSA payments of $1,800 per month.
Before me, he has admitted that when arrested, he was trafficking in the dangerous drugs that were found in his pocket.
It is accepted that he is drug addicted. He is now 40 years of age, married, with an infant child living with his wife on the mainland. He was convicted of trafficking in dangerous drugs in July of 1998 and sentenced to 5 years and 6 months’ imprisonment. He has twice been convicted of possession of dangerous drugs, the last occasion being in August of 2009, when he was sent to a drug addiction treatment centre.
On behalf of the defendant, Mr Haynes submits that I should sentence him on the basis that a substantial portion of the drugs were for his own consumption. He points out that the drugs were in two packets, one containing 13.46 grammes and the other containing 9.98 grammes. Mr Haynes submits that when the defendant told the police that the drugs found in his pocket were for his own consumption, this was in part truthful, but he accepts that he was trafficking, but not in the total amount.
I have been referred to several decisions of the Court of Appeal, and in particular, HKSAR v Chong Heung Sang and HKSAR v Wong Suet Hau. In Wong Suet Hau, the Court of Appeal gave guidance to the sentencer as to the correct approach to mitigation which seeks to reduce the criminality of the drug trafficker’s offence by inviting the court to accept that a substantial portion of the drugs was for the defendant’s own consumption.
It should be said at the outset that the prosecution do not accept Mr Haynes’ assertion that a significant portion of the 23.44 grammes of methamphetamine hydrochloride in the instant case was for the defendant’s own consumption, albeit that it is accepted that he may have consumed some of those drugs.
Mr Haynes did not wish to conduct a Newton Inquiry in the matter, but did call the defendant’s sister on other issues as part of his mitigation. It is at the core of Mr Haynes’ submission that I should accept that one of the two packets of dangerous drugs was or may have been for the defendant’s own consumption, and sentence accordingly.
The court in Wong Suet Hau made a number of observations, and I quote from paragraph 29:
“The principle is of course well-established that where a part of the drugs referred to in a drug trafficking charge is proved to have been possessed by a defendant for the purposes of trafficking this will be a sufficient basis for a finding of guilt on a charge of trafficking even though a proportion of the same drugs is or may have been for the defendant’s personal consumption.”
Later in the judgment at paragraph 33, the Court of Appeal said this:
“What the sentencer should do when the trafficker says that part of the drugs were for his own consumption, is that, where appropriate, this element should be taken into account when sentence is imposed, because all sentencing must be based on a version of the facts which properly reflects the justice of the case.”
That being said, in drug cases where traffickers are renowned for their attempt to circumvent the rigour of the court’s stern approach to drug offences, sentencers will need to examine with particular care any assertion by a proved or self-confessed trafficker that part of his haul was for his own consumption. They will be slow to accept a bare assertion unsupported by confirmatory evidence. They will remember that true cases of this kind, where the purpose of possession is mixed, will almost always involve small quantities, and they will have to bear in mind that the quantity accepted as having been intended for self‑consumption carries a sentence in any event, and that this might itself be aggravated for the latent risk factor, so that in most true mixed cases, the difference in sentence, if any, will be slight.
At paragraph 34, the Court of Appeal said this:
“Arising from these considerations:
(1) Where, after a plea of guilty to trafficking in dangerous drugs, it is suggested in mitigation, that a significant proportion of the drugs was intended for the consumption of the defendant and not for trafficking, and where it is apparent from the circumstances as a whole that the contention, if true, may well make a difference to sentence, the sentencing court should address the issue.
(2) Having regard to the dangers of the abuse of this avenue of mitigation, the judge should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the contention.
(3) In determining whether to accept the contention, the normal rules for determining the factual basis for sentence apply. The factors to be considered will include:
(a) the quantity of drugs and, if known, their value;
(b) the general circumstances, including how the drugs are wrapped, and how many wraps or packets are found;
(c) where the drugs have been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;
(d) the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;
(e) whether the defendant is an addict or is otherwise accepted to have been an habitual user of the drug in question;
(f) the explanation given by the defendant following arrest;
(g) the defendant’s general means and his ability to pay for his drugs otherwise than by trafficking in them.
Usually a court will be able to determine the issue from these factors without a Newton hearing.”
Returning to the factors identified by the Court of Appeal, in the present case, the quantity of drugs is not substantial. However, relative to the defendant’s means, the value of the drugs has to be acknowledged is substantial. There were two packets, and it is reasonable to accept that the defendant was in the course of returning to his home with the drugs.
The defendant, it is accepted, is drug addicted. There was no paraphernalia normally associated with packaging in his home, and perhaps of equal importance, there were no other drugs in his home. Set against this, however, is the fact that the defendant was in possession of a substantial amount of money when arrested, and drugs, whilst not of a significant quantity, the value of which, however, relative to his financial circumstances, was quite considerable, and one cannot lose sight of the fact the defendant has previously been convicted of trafficking, and I am told that the drug on that occasion was heroin.
Taking all of these matters together, I have no doubt that some part of these drugs would be consumed by the defendant. I am told that his regular consumption is one-third to one‑half gramme of methamphetamine hydrochloride per day.
As I have indicated, I am not satisfied that a substantial portion of these drugs were or may have been for the defendant’s own consumption, but I am satisfied that he would or may have consumed some himself, but that the bulk was for the purposes of trafficking.
The starting point for sentence therefore should properly reflect that. I am not able to say what quantity would be consumed by the defendant or would probably be consumed by the defendant, but taking all matters into account, including the other factors advanced in mitigation by Mr Haynes, I have determined that the appropriate starting point for sentence after trial in the instant case would be 7 years’ imprisonment.
That will, of course, be discounted by one-third to reflect his plea of guilty to the charge. There are no other factors in the circumstances of the offence or in the circumstances of the defendant which would permit me to grant him any further reduction from that starting point.
The sentence therefore is one of 4 years and 8 months’ imprisonment.