CRIMINAL CASE NO. 215 OF 2012
COURT: The defendant has pleaded guilty on Friday to one count of trafficking in a dangerous drug, namely 72.44 grammes of a crystalline solid containing 71.3 grammes of methamphetamine hydrochloride and 0.44 of a gramme of a mixture containing 0.34 of a gramme of heroin hydrochloride.
The facts are not unusual in that the defendant was stopped shortly after leaving his premises in Sham Shui Po and a packet of "Ice" of 27.3 grammes was found from his trousers pocket. The police gained entry into the premises and, inside a locked drawer opened with a key seized from the defendant, there were three bags, a total of 43.81 grammes of "Ice", and one bag of 0.34 of a gramme of heroin hydrochloride were found. The defendant admitted that all the drugs found belonged to him.
Also found by the police, on a desk, was an electronic scale, a bunch of resealable plastic bags, a lighter and a pair of scissors. There were also found two plastic bottles containing a small quantity of liquid with traces of "Ice".
In the video-recorded interview, the defendant, under caution, said that he had obtained the drugs from a friend and was planning to resell the drugs. He also used the bottles to inhale drugs inside the toilet and the female who was found on the premises had no knowledge of that.
It is also admitted that the street retail value of all the drugs was $52,430.
The defendant is aged 43 and has a very poor record. He has some 28 previous convictions, 11 to do with drugs and three were for drug trafficking. Admittedly, the first two drug trafficking offences, as Mr Khosa pointed out, could not have been very serious because he was sent to a drug addiction treatment centre. But his last drug trafficking offence was in 2008 when he was sent to prison for 3 years and 7 months.
Mr Khosa has done everything he can in mitigation for the defendant. This case was adjourned for a day in order for the police to investigate the defendant’s claim that he had supplied relevant information in his video-recorded interview, but that did not turn out to be the case.
The defendant claims that a large part of the drugs was for his own consumption. In mitigation, through Mr Khosa, I had indicated that the defence is free to call evidence on that point because I do not accept that a large part of the drugs, or even half of the drugs, were for self-consumption. Taking a look at the photographs, the flat is a very small and messy place and on the computer desk was found the electronic scale, bunch of resealable plastic bags and all this is consistent with what the defendant had told the police, that he was going to resell the drugs. I have no doubt, of course, in that the defendant may have used a small part for his own consumption.
In mitigation, Mr Khosa mentioned that he has two children who are being looked after in foster homes as his wife suffers from depression and the reason that the defendant takes drugs is because he was under stress. I see from the record that he has been under stress for a long time. He was first sent to a drug addiction treatment centre in 1985, in 1995, quite consistently. So it is merely an excuse. He was sent also again to a drug addiction treatment centre in 2005.
He claims, through Mr Khosa, that his children come and stay with him occasionally, and I would only comment that it would be a poor environment for any child to grow up in, in that place where these drugs were found.
I am told by Mr Khosa that he deals in second-hand phones and earns about $15,000 per month. I have no evidence from the defence that that is his earnings, although some phones were found in his home, according to Mr Khosa in mitigation. Again, the trade of second-hand mobile phones can be a huge business or it can be a hand-to-mouth existence so I have no evidence on that.
Mr Khosa did ask for the release of the Exhibit P18, which is a bank passbook, on Friday so that an up-to-date endorsement of the bank passbook could be made in order to assist him in his mitigation. I did release the bank passbook to the custody of either Mr Khosa or his instructing solicitors in order to have that done. No other mention of that has been made.
So all I have to go on really is the fact that the defendant says he has been taking drugs for a long time. I see from the criminal record that he has been sent to drug addiction treatment centre many times also. I do not have any evidence to support the submission that he can afford to take the amount of drugs he claims that he would be taking from this amount found by the police, although I do accept that he may occasionally take some for his own pleasure.
I have referred, as Mr Khosa very correctly pointed out, to the case of Ching Kwok Hung which is where the Court of Appeal laid down guidelines for trafficking in methamphetamine hydrochloride. The total amount of drugs in this case is 71.64 grammes and that would be including the small amount of heroin, 0.34 of a gramme. Under Ching Kwok Hung’s case [1991] 2 HKLR at 125, the starting point is recommended to be 10 to 14 years’ imprisonment for trafficking in 70 to 300 grammes. In this case, the appropriate starting point is 10 years.
Giving the defendant his full one-third discount, the sentence would be 6 years and 8 months, and taking into account that he does, I am sure, use some of it for his own pleasure, I would reduce the sentence to 6 years’ imprisonment.
So the defendant goes to prison for 6 years.