CRIMINAL CASE NO. 457 OF 2011
COURT: The defendant has been convicted on his own plea of trafficking in a dangerous drug, namely, 62.33 grammes of a crystalline solid containing 60.96 grammes of methamphetamine hydrochloride, commonly known as “Ice.”
This offence was detected by police officers on 6 July 2011 when they carried out an operation in respect of the premises known as Room 910, Yuk Kwai House, Kwai Chung Estate. The police laid ambush in the vicinity of these premises, and at 1729 hours, a female, Lau Wai-ping, arrived at the outside of the premises. When the defendant opened the door for Lau, the police revealed their identity and intercepted both persons. Armed with a search warrant, the police then searched the premises.
Upon searching the premises, the police found 10 packets of suspected “Ice” and three sets of electronic scales inside a plastic box on a mahjong table. A chemical analysis revealed the suspected “Ice” to be 62.33 grammes of a crystalline solid containing 60.96 grammes of methamphetamine hydrochloride.
Two keys to the premises were seized from the defendant, and upon his arrest and under caution, he admitted that all the “Ice” belonged to him. The defendant further explained that he was recently in need of money and all the “Ice” was for sale to customers to make money.
In a video-recorded interview conducted between 2354 hours on 6 July 2011 and 0020 hours on 7 July 2011, the defendant claimed that he had bought the “Ice” in Mongkok in the afternoon. He decided to consume some of the “Ice” and then to sell the remainder at a price of $300 per gramme. He also admitted that the three electronic scales were for weighing the dangerous drug. The defendant also explained that the registered tenant of Room 910 permitted him to use the premises and that he had been given two keys to the premises to enable him to gain entry to them. The retail value of the seized dangerous drug was estimated to be $43,755.
The sentencing ranges for trafficking in “Ice” are to be taken from the guidelines laid down by the Court of Appeal in Attorney General v Ching Kwok Hung[1991] 2 HKLRD 125. There, the Court of Appeal said that where the amount of “Ice” being trafficked is between 10 and 70 grammes, the sentencing range should be 7 to 10 years’ imprisonment.
In the present case, the quantity in which this defendant trafficked was 60.96 grammes of “Ice,” and so this defendant is placed in the 7 to 10 years’ band for sentencing purposes.
The existence of the sentencing tariffs leaves little room for mitigation, but notwithstanding this, the sentencing tariffs play a very important role for two main reasons. Firstly, they lead to consistency in sentencing and avoid distinctions being drawn between drug traffickers based upon the nature of their trafficking, whether they be couriers, storekeepers or play some other role. Whatever the role played by the trafficker, the sentence will generally be the same. See HKSAR v Manalo[2001] 1 HKLRD 557 at page 560 G-H.
Secondly, these tariffs help to deter those who might otherwise be tempted by what they perceive as an easy and low-risk means to substantial profits. See Secretary for Justice v Chan Ka Wah[2005] 4 HKLR 904 at 908, paragraph 20. The Court of Appeal has made it clear that it requires exceptional circumstances to justify a departure from the guidelines and that whilst the sentencing judge may retain some degree of discretion, the sentence imposed should normally be within the suggested bands. See the Chan Ka Wah case at page 908, paragraph 22.
No such exceptional circumstances are present in this case. Nevertheless, I still have some sentencing discretion. I can take into account the profit that might be derived from the trafficking, the number of packets, the type of mixture containing the narcotic, the degree of involvement of the offender and any previous involvement he or she may have had in drug offences. (See HKSAR v Abdallah[2009] 2 HKLRD 437and HKSAR v Chong Heung Sang[2010] 3 HKC 88.)
The defendant is 39 years old. He left school in 1987 when he was 14 years of age and only has Form 1 education. He has worked in a restaurant and bar and also as a construction worker and transportation worker. At the time of his arrest, he had been working for six months with a garage, performing the role of a driver of motor vehicles. At that time, he had only been at liberty for some 12 months as he had been released from previous sentences for drug offences.
He has been in trouble with the law since he was 19 years of age and has convictions for a number of different offences, including five convictions for possession of dangerous drugs. Two of the drug offences, one in 2007 and another in 2009, each attracted sentences of 16 months’ imprisonment. Up to the present, these were his most serious convictions.
The defendant has been a long-term drug abuser of “Ice,” and at the time of his arrest a medical examination by Correctional Services Department revealed that he was then suffering from “Ice” addiction. This is also reflected in his criminal record.
He now tells me that he is extremely remorseful and wishes to start a new life for himself. He has the support of a mother and a fiancée, both of whom have shown extraordinary patience with him and extraordinary devotion to him. His drug addiction has caused harm to both of them, with the mother feeling guilty about not having reared her son to live a happy and meaningful life and for the fiancée who has, as a result of the stress and depression caused by his addiction and guilt by herself at not being able to assist him to eradicate it, has caused her to attempt suicide. Notwithstanding this, she remains devoted to him and hopes that on his release from prison, they will be able at last to lead a happy life together. I note that she herself suffers medical conditions which will need treatment, and I wish her well in that regard.
The criminal record of the defendant would have normally disinclined me from extending any leniency to him. However, I am impressed by the letters written by the mother and the support provided by the fiancée, and I have decided therefore to give him one last chance. I also note that in his record of interview, he asserted that he intended to use some of the drugs that he bought for his own consumption, and I accept that given his addiction, this was likely to be so in respect of a significant amount of the drugs. As an addict, he was consuming 1 to 2 grammes per day.
Within the 7 to 10 years’ starting band, given the quantity of drugs involved, I have decided to adopt a starting point of 8 years and 9 months. Were it not for the sympathetic background of this defendant and the support that he will receive on his release from prison, I would have been minded to adopt a higher starting point. I discount that starting point by 15 per cent to allow for the element of self‑consumption. I then discount the resulting figure by one-third to allow for the plea of guilty. This results in a final sentence of 4 years 11 months’ imprisonment, and as there is no other basis for discounting the sentence further, that is the sentence that I impose.
Mr Ho, stand up. I have decided, as you have heard, to give you one last chance and so that has affected the way I have calculated your sentence. I have adopted a lower starting point than I might otherwise have normally done, and I have given you a discount for your claimed consumption of the drugs that were found in your possession. The resulting sentence is 4 years 11 months’ imprisonment.
However, as you well know, the Commissioner of the Correctional Services does have the power to reduce that sentence further should you be of good behaviour in the course of your prison term. You are at an age now where you must make a decision about the path you are to follow. On your release from prison, you still have the opportunity to enjoy many years of happy life. Whether you take advantage of that opportunity is a matter for you, but I should make it clear that I have given you the leniency that I have not just on the claims of remorse that you make but, more importantly, because of the support which I see awaits you.
You owe much to others, especially to your fiancée, and from now on, you must show them that their trust in you is not misplaced. As you yourself have pointed out in your letter to me, the Correctional Services Department does allow you the opportunity to acquire skills and training. I urge you to take full advantage of that so that on your release, it will be easier for you to obtain employment. You may sit down.