COURT: The defendant pleaded guilty before me this morning to two counts of trafficking in a dangerous drug. The 1st count relates to trafficking in namely 13.59 grammes of a crystalline solid containing 12.96 grammes of methamphetamine hydrochloride.
The 2nd count relates to trafficking in namely 14.28 grammes of a crystalline solid containing 13.55 grammes of methamphetamine hydrochloride, 11.96 grammes of a solid containing 10.9 grammes of cocaine and 27.42 grammes of cannabis in herbal form.
The facts are that on the evening of 5 September last year, when the police were keeping observation between the 5th and 6th floors of a building in Nathan Road, the defendant stepped out of the lift on the 6th floor and was approached by the police who revealed their identity. The defendant immediately ran down the stairs; the police chased and, on the ground floor of the building, police officers subsequently managed to apprehend the defendant.
In the pocket of the shorts the defendant was wearing was found a plastic bag containing the dangerous drug which is the subject matter of the 1st count. Also found in the front pocket of the shorts that the defendant was wearing was a set of keys which the defendant used to open the door to the premises in the same building on the same floor.
Upon being arrested and cautioned for the drugs found in his shorts, the defendant admitted that he was going to sell the dangerous drug to somebody.
A search warrant was executed for the premises which the defendant was in possession of and inside those premises were found the drugs which are the subject matter of the 2nd count. Apart from the drugs that were found were a quantity of empty transparent resealable plastic bags, an electronic scale which contained traces of a powder containing cocaine, a pair of tweezers and a pair of scissors. It is clear therefore, from this, that the electronic scale was used for measuring drugs which were for packing in the resealable plastic bags.
The estimated street value of all the drugs that were found were in the region of HK$38,991.
After being arrested and cautioned for trafficking in the drugs found in the premises, the defendant said that he had obtained the "Ice" and the cannabis with a view to selling them to make money.
The defendant is aged 35 and has a very poor record. His first offence was in 1993 for trafficking in dangerous drugs for which he was sentenced to a Drug Addiction Treatment Centre. He has been convicted on some 26 occasions, three of which were for trafficking in a dangerous drug. His last offence was for trafficking in dangerous drugs in 2009 when he was sentenced to 4 years’ imprisonment. He was discharged from prison on 4 January 2012 and arrested for this present offence on 5 September 2012, eight months later.
Scattered throughout his criminal record there are also six occasions when he was convicted of possession of dangerous drugs. The last occasion he was sentenced to a drug addiction treatment centre was in March of 2009 for possession of dangerous drugs. So throughout his awful history, the defendant has been given many chances in the past.
In mitigation, Mr Yeung has tried valiantly to come up with a reason for the defendant committing the present offence. It is claimed by the defendant that his business failed and that his wife gave birth to a baby daughter this year, in April, and that he only intended to sell to friends and acquaintances.
But as far as I can see from the defendant’s criminal record, since 2007, he has been in and out of prison and has not had much time to do business, let alone support his family. It is a shame that his young, innocent daughter was born this year and the defendant will not be able to see her for some time, but the defendant only has himself to blame.
The only mitigation I can see for the defendant is the fact that he has pleaded guilty. The sentence for trafficking in dangerous drugs has been pretty settled because the Court of Appeal has laid down guidelines for both sentencing in methamphetamine hydrochloride, for trafficking in the drug and also for trafficking in heroin and cocaine.
In relation to methamphetamine hydrochloride, the case of Ching Kwok Hung laid down guidelines that for trafficking in between 10 to 70 grammes of methamphetamine hydrochloride would warrant a starting point sentence of 7 to 10 years’ imprisonment.
As for cocaine, it has been said that sentencing for trafficking in cocaine should follow the guidelines laid down for heroin in Lau Tak Ming and it was recommended that for trafficking in between 10 to 50 grammes of the drug, a sentence of 5 to 8 years’ imprisonment as a starting point is reasonable.
So taking into account these guidelines, I also consider the fact that the defendant was found outside his home with the drugs in Count 1 in his pocket and, shortly after, the drugs in Count 2 were found inside his premises. So I do have to consider the overall sentence. Taking into account the sentencing guidelines and the facts in this case, I consider that an overall starting point sentence for both counts would be in the region of 13 to 14½ years’ imprisonment.
In this case, taking all the circumstances into account, including the defendant’s personal history and background, I consider that an overall starting point of 14½ years is reasonable. I will sentence the defendant in the following way:
In Count 1, I will use a starting point of 7 years and reduce it by one-third and therefore sentence the defendant to 4 years and 8 months.
In relation to the 2nd count, there is a cocktail of drugs and I consider that an overall starting point in the 2nd count would be one of 7½ years’ imprisonment. Giving the defendant the full one-third discount will reduce the sentence to one of 5 years’ imprisonment.
This sentence will be served consecutively to the sentence in the 1st count so the defendant will go to prison for 9 years and 8 months.
Please refer to CACC144/2013 for the relevant appeal(s) to the Court of Appeal.