COURT: The defendant has pleaded guilty to two counts of trafficking in a dangerous drug, namely, in the first count, to trafficking in 5.01 grammes of a mixture containing 1.81 grammes of heroin hydrochloride and 20 tablets containing 0.27 grammes of midazolam. The second count of trafficking was in 10.56 grammes of a crystalline solid containing 10.41 grammes of methamphetamine hydrochloride, 8.29 grammes of a mixture containing 3 grammes of heroin hydrochloride and 110 tablets containing 1.62 grammes of midazolam.
The facts admitted show that on the evening of 5 February 2013, police officers saw a male person approach the door of room 211 where the defendant lives and had a transaction with someone inside room 211 through a slightly opened wooden door. When the male walked away from the premises, he was intercepted and on his person was found a plastic bag containing the drugs which is elicited in the first count. In a subsequently recorded interview under caution, the defendant admitted that she was the person who had sold those drugs to the male for HK$4,000.
When police officers searched the premises of the defendant, the drugs, which is the subject matter of the second count, was discovered. Apart from the drugs, were also found some 30 smaller transparent plastic bags, a pair of scissors and also an electronic scale. Also found was burnt tinfoil containing traces of heroin and a plastic bottle with an inhaling device containing liquid containing traces of methamphetamine. The defendant, under caution, admitted that she used the plastic bottle for her own consumption of "ice" and that the aluminium foil was for her own consumption of heroin. The total retail value of the dangerous drugs were about HK$24,800.
The defendant is aged 34 and has some previous convictions, all of which are drug related. Of her five previous convictions, one was for trafficking in the year 2009, where she was sentenced to 16 months imprisonment. She has also been to a drug addiction treatment centre twice.
In mitigation, Mr Leung has put forward the argument that the defendant had a principal part of the drugs for her own consumption. He correctly referred to the case of HKSAR v Wong Suet Hau [CACC 366/2000] and HKSAR v Chan Sau Pang [487/2000] where the Court of Appeal correctly identified certain matters which the sentencing court should bear in mind when determining the factual basis for sentencing in drugs where a defendant claimed that part of the drugs were for her own consumption.
I do accept that the defendant may partake of the drugs for her own consumption, but I do not accept that she has a large part of it for her own consumption. Particularly, she cannot show that she is able to support consuming such a large quantity of drugs, because she is unemployed, although she claims that she gets money from her boyfriend and her mother. I informed Mr Leung that if the mitigation involves this aspect, and I am not prepared to accepted it at face value, but I am willing to hold a Newton inquiry in relation to this aspect of the mitigation. Mr Leung, having taken instructions, said that the defendant does not wish to proceed with a Newton inquiry.
So, therefore, I will proceed to sentence on the basis that most of the drugs were for trafficking in dangerous drugs and only a very small amount was for her own consumption. Taking into account, again, the Court of Appeal’s judgment in the cases which I have been cited to me by Mr Leung, the Court of Appeal did say that when the judge is adjusting the sentence to reflect that not all the drugs were for trafficking, the judge should bear in mind that, first of all, “The fact that possession of dangerous drugs itself carries a term of imprisonment,” and, secondly, “That the requirement to enhance a sentence for simple possession of drugs to reflect where appropriate the ‘latent risk factor’,” and this factor, “takes into account the risk that some of the drugs intended for self-consumption” - the Court of Appeal said - “may nevertheless find their way into the hands of others.” And the court observed that the application of these considerations may well, “Offset much of the practical value of the mitigation.”
As I have said, taking into account this latent risk factor, it is also pertinent to note that the defendant was selling drugs from her home from which all these drugs were found, so this risk is certainly significant.
As in the past, the Court of Appeal has noted that when considering sentence of a cocktail of drugs, the court should add up the different quantities and consider what is the major quantity, what type of drug that is. In this case, the total amount of drugs in both counts amount to about 17 grammes and 10.41 grammes of that quantity is for methamphetamine hydrochloride, commonly known as "ice". So taking into account the sentencing guidelines in the case of Ching Kwok Hung [1991] 2 HKLR 125, the guideline is that for trafficking in 10 to 70 grammes of "ice" will merit a sentence of some 7 to 10 years imprisonment as a starting point.
Having considered the facts in this case which I have mentioned, I consider that an appropriate starting point is one of 7 and a half years in prison for the total amount of drugs. I will reduce that starting point for the total amount of drugs to 7 years, because that is to take into account that part of those drugs were for the defendant’s own consumption. So I will sentence the defendant in the following way.
For Count 1, I consider an appropriate starting point to be one of 2 years imprisonment. Giving the defendant one-third for her plea, reduces the sentence to 16 months.
In relation to Count 2, the starting point will be one of 7 years imprisonment, which, giving the defendant one-third off will reduce the sentence to 4 years and 8 months.
Both counts will be served concurrently, so the defendant is sentenced to a total of 4 years and 8 months.
Please refer to CACC57/2014 for the relevant appeal(s) to the Court of Appeal.