CRIMINAL CASE NO. 92 OF 2012
COURT: The 1st accused in the indictment has pleaded guilty to one count of trafficking in a dangerous drug, namely 45.71 grammes of a crystalline solid containing 44.76 grammes of methamphetamine hydrochloride, 13.28 grammes of a solid containing 10.06 grammes of cocaine, 3.5 grammes of a powder containing 0.17 grammes of ketamine, and 28.08 grammes of cannabis in a herbal form.
The defendant was stopped by police officers after he left his flat and, upon a search of his person, was found HK$15,000 in cash, two mobile phones and a bunch of keys. The police had a search warrant to search his flat and using the keys found on the defendant, gained entry into the flat. The drugs the subject matter of the count were found in a plastic box on a shelf inside the flat. The police also found an electronic scale next to the drugs. The drugs, the methamphetamine hydrochloride, the cocaine and the ketamine, were in plastic bags inside the plastic box. The cannabis was separately wrapped and was not inside the plastic box but was next to the electronic scale.
The defendant was cautioned and he admitted that he sold the drugs for monetary reward. The estimated market value of the drugs was about HK$50,565.
The defendant is aged 50 and has some 12 previous convictions, six of them to do with dangerous drugs; five for possession of dangerous drugs and one for trafficking in dangerous drugs. The trafficking in dangerous drugs offence was committed in 2010 for which he was sent to a Drug Addiction Treatment Centre. He was released in November of 2010 and the present offence was committed last year, that is 2011, in October last year. So it would appear that not long after his release from the Drug Addiction Treatment Centre, he again dealt in drugs.
The defendant had, according to Mr Chan, mitigating on his behalf, worked at various jobs and according to what he told the police, the defendant said he was unemployed at the time of his arrest. The defendant says he is addicted to dangerous drugs, that is "Ice" and cocaine, since he was 20 years old. He is now 50 years old.
This count of trafficking contains separate and distinct drugs. The Court of Appeal has stated that when there is a cocktail of drugs, the sentencing judge should, when sentencing, consider the drugs as a whole. In this case, the methamphetamine hydrochloride was 44.76 grammes and that is the most serious of this cocktail of drugs. The next is cocaine which is in the region of 10.06 grammes.
As Mr Chan correctly pointed out, there is a sentencing guideline in relation to the methamphetamine hydrochloride which is laid down in the case of Ching Kwok Hung in 1991. In that case, the Court of Appeal has pronounced that a reasonable sentence the court should consider for sentencing for between 10 to 70 grammes of methamphetamine hydrochloride, the sentence should range from between 7 to 10 years’ imprisonment. As far as cocaine is concerned, the sentencing guideline is the same as for heroin, in the case of Lau Tak Ming.
So having considered the total weight that is involved in this case, of the drugs, I consider that, overall, the starting point should be one of 9 years’ imprisonment.
Mr Chan has submitted that his client consumes part of the drugs and submits that a 10 per cent discount is appropriate in the circumstances. In sentencing, it is not a scientific analysis, it is a matter of considering the background of the defendant, the case itself, the facts of the case, and to take into account everything and arrive at an appropriate sentence for the defendant.
As I have said, I have taken into account the background of the defendant. He is unemployed. Basically, he admitted to the police that he is relying on the sale of the drugs to gain monetary reward. One has also to take into account the fact that the defendant has been a drug addict for a long time.
Taking all that into account, I will reduce the sentence, to take into account that some of those drugs were for his own consumption, from 9 years to one of 96 months, and then reducing that sentence by one-third to take into account his plea of guilty, the sentence therefore is reduced to 64 months.
The defendant will be sentenced to 5 years and 4 months.