COURT: The defendant faced two counts of trafficking in dangerous drugs.
At the beginning of the trial he pleaded guilty to Count 1. In relation to Count 2, he pleaded not guilty to the original offence of trafficking in dangerous drugs, but pleaded guilty to the offence of possession of dangerous drugs. The prosecution did not accept the plea to the lesser offence, and Count 2 therefore proceeded to trial.
After trial, the jury found the defendant not guilty of the offence of trafficking in dangerous drugs, but found him guilty of the alternative offence of possession of dangerous drugs.
In sentencing, I take into account the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs involved, background of the defendant, and mitigation put forward on his behalf.
The facts of the case are simple. In the early hours of 24 January 2012, police officers came to the flat in question and knocked on the door. Eventually the defendant opened the door and allowed the officers to enter the flat. Inside a room of the flat on the top of a chest of drawers, the officers found items including dangerous drugs which are the subject matter of Count 1, and two “Ice” bottles.
The defendant was arrested, and he said under caution, “Those dangerous drugs were bought by me for treating guests and taking together when everyone was happy.”
In a subsequent interview, the defendant said that the dangerous drugs were for himself and to treat and share with friends or to treat and share with customers who have become his friends.
The officers continued to search the chest of drawers, and found inside two drawers items including the dangerous drugs which are the subject matter of Count 2, and another “Ice” bottle.
The defendant was again arrested, and he said under caution, “The dangerous drugs are for my own consumption.”
I was told that the defendant is 48 years of age. He is divorced and has no children. He had attained education at Form 3 level and had worked as a masseur.
The defendant is not a first-time offender. In January 2002 he was convicted of eight charges of trafficking in dangerous drugs and two charges of possession of dangerous drugs. For these convictions, as I understand it, he was sentenced to a total imprisonment term of 3 years and 4 months. In any case, he was discharged on 28 February 2004.
Counsel for the defence, Mr Andrew Leung, urged me to accept that even though the defendant admitted trafficking in the dangerous drugs in Count 1, his intention was to keep about half of the quantity for his own consumption. He also stressed that the defendant had pleaded guilty to both counts of offence for which he now stands convicted.
In relation to Count 1, the defendant had trafficked in two types of dangerous drugs. They were 0.66 grammes of a crystalline solid containing 0.65 grammes of methamphetamine hydrochloride, commonly known as “Ice”, and 1.04 grammes of a powder containing 0.82 gramme of ketamine.
In my judgment, a combined approach is appropriate in the circumstances to decide a suitable starting point. “Ice” is obviously the more serious dangerous drug between the two. In A-G v Ching Kwok Hung [1991] 2 HKLR 125, the Court of Appeal held that when the narcotic content of the “Ice” trafficked was up to 10 grammes, the sentence should range from 3 to 7 years.
In the present case, I see no reason to depart from the tariff. Although there are Court of Appeal decisions that, if the quantity of dangerous drug trafficked is very small and the offence is committed by a first offender, the court may exercise its discretion to adopt a lower starting point, this case definitely does not fall in that category; in particular, in the light of the criminal conviction record of the defendant.
The defendant claimed that part of the dangerous drugs were for his own consumption, he did not testify for this purpose. In the circumstances of the case, I do not consider holding a Newton hearing necessary. In considering the matter, I note that there was no clear or readily discernible quantity of dangerous drugs which the defendant asserted was for his own consumption. I also note that when the dangerous drugs were found, the defendant made admission about sharing of the dangerous drugs with friends, but did not say a word about having them for his own consumption. Although he did say so in a subsequent interview, in my judgment, the weight is minimal.
That said, and in particular having regard to the existence of evidence pointing to the defendant being a drug abuser and the verdict by the jury in relation to Count 2, I will not reject the assertion of the defendant, but in my judgment, the defendant must have been prepared to supply whatever amount of the dangerous drugs in question to others if there was such a demand.
In any case, having regard to what the Court of Appeal said in HKSAR v Wong Suet Hau CACC 355/2000, in my judgment, even if I am to accept that a small proportion of the dangerous drugs found was for self-consumption, the difference in sentence would be slight and insignificant to any real degree, as the quantity accepted as being intended for self‑consumption carries a sentence in any event, and such sentence has to be enhanced for the latent risk, which I found was extremely high.
The admission made by the defendant in relation to Count 1 was that the trafficking was done by way of sharing with friends or customers. In his submission, defence counsel did not go as far as suggesting that the sharing did not carry any financial gain. In any case, even if there had been no financial gain, the gravamen is that the defendant was affording encouragement to others to consume the dangerous drugs.
Whilst the aggravating features of being a manufacturer or a wholesaler do not exist, the assertion of sharing does not justify a lower starting point. The harm and suffering caused to the individuals and the community as a whole cannot be ignored when a person makes available to others dangerous drugs. In my judgment, the supply has to be deterred and dealt with vigorously in sentence.
The combined approach involves artificially treating all the dangerous drugs as “Ice” by doing certain conversion. It does not take into account the aggravating feature that the defendant was in possession of two types of dangerous drugs for the purpose of trafficking.
For this reason, I am of the view that the starting point should be enhanced by 6 months.
In all the circumstances, I adopt for Count 1 a starting point of 3 years and 3 months.
In relation to Count 2, the jury found the defendant guilty only for the offence of possession of dangerous drugs. Four types of dangerous drugs were involved: 14.69 grammes of a crystalline solid containing 14.37 grammes of “Ice”; 25.11 grammes of a powder containing 18.78 grammes of ketamine; 12.91 grammes of cannabis in herbal form; 8 tablets and 2 tablet fragments containing 1.17 grammes of 3,4-methylenedioxyamphetamine, commonly known as “Ecstasy”.
In determining the starting point, I have had regard to cases such as HKSAR v Mok Cho Tik CACC165/2000, HKSAR v Jarhia Kuldeep Singh CACC97/2006, as well as HKSAR v Ng Chi Leung Alan CACC332/1999 and the cases cited in it.
I have taken into consideration the quantity of the dangerous drugs in the possession of the defendant and that there were four different types of dangerous drug and the extremely high latent risk which is self-evident in the circumstances of the case.
For the last two factors I mentioned, the starting point should be enhanced by 18 months. In deciding the extent of the enhancement, I have borne in mind that as the existence of four different types of dangerous drug has been taken into account in deciding the degree of latent risk, this aggravating feature has been partly reflected in the enhancement for the latent risk.
In my judgment, an ultimate starting point of 3 years is appropriate and sufficient to reflect the nature and degree of seriousness of this charge.
The defendant pleaded guilty to both counts. He is entitled to a one-third discount.
Having considered the whole circumstances of the case, I am of the view that this is the extent of discount he is entitled to.
The two offences were committed at the same place and at the same time.
In deciding the overall sentence, I have to bear in mind totality. I have had regard to the case HKSAR v Ngai Yu Ching CACC107/2011. My task is to decide whether the offence in one count adds culpability to the other and to assess the overall culpability of the defendant.
In my judgment, the offence in Count 2 adds significantly to the culpability of the defendant for committing Count 1.
I do not think a concurrent sentence can sufficiently reflect the overall culpability. The overall culpability can only be reflected by way of partly consecutive sentences.
Defendant, please stand up. For the reasons aforesaid, I sentence you to the following imprisonment terms:
For Count 1, 26 months; Count 2, 2 years.
Having regard to totality, I order 10 months of the sentence imposed on Count 2 to run consecutively to the sentence imposed on Count 1.
You are to serve a total imprisonment term of 3 years for the two offences.