According to the facts, at 4.00 am in the early hours of the morning on the day in question police went to the flat to locate D1 as a result of a request for assistance. D2 opened the door and D1 was seen to be holding one bag in each hand, shovelling one into her jeans whilst throwing the other back on to the floor in a room.
The bags containing drugs were recovered and further drugs apparatus for inhaling and trafficking paraphernalia were found inside the barely furnished flat. Upon analysis, the drugs were found to be 40.43 grammes of a crystalline solid containing 39.92 grammes of methamphetamine hydrochloride, 99.94 grammes of a mixture containing 25.41 grammes of heroin hydrochloride, five tablets containing a total of 0.03 grammes of methamphetamine and 35 tablets containing a total of 0.46 gramme of midazolam. The street value of all the drugs was estimated to be around HK$121,000.
D1 said under caution that all the drugs were hers and she was just making a living and these had nothing to do with D2. D2 said that she was only responsible for renting the flat. She signed the tenancy agreement with the estate agency some two weeks ago and the tenancy commenced some 12 days prior to the police raid.
D1 is now aged 38. She has eight previous convictions. Most of them are drugs related. In June 2007 for trafficking in dangerous drugs she was sentenced to 7 years’ imprisonment. Last year in March she was also sentenced to 20 months’ imprisonment for trafficking in dangerous drugs. The present case happened whilst she was on bail and in fact while she was jumping bail in respect of the last offence.
In respect of D2 she has 11 previous relating to dangerous drugs. She has a record of trafficking back in 2004 and 2010. For the last trafficking offence she was sentenced to 16 months’ imprisonment. D2 is now aged 33.
D1, found guilty after trial, has advanced no mitigation. Her background can be glimpsed from her antecedent statement.
In respect of D2, counsel submitted that she got to know D1 when they were both serving imprisonment in Lowu Correctional Service Institute and that D2 has been unemployed since 2009 and financially supported by her mother who would give her $15,000 every month. It is submitted that the present rental deposit in respect of that flat was all contributed by the mother.
Counsel urges me to take into account D2’s relatively short duration of knowledge of the storage of the drugs prior to the arrest.
Different drugs are involved in the present case, namely, “Ice”, heroin and midazolam. The amount of midazolam is negligible for sentencing purposes.
In the case of Cheng Yat Ming, CACC 455/2006, the Court of Appeal pointed out that a global approach in sentencing should be adopted where drugs are of a comparable kind and in that case it is pointed out that heroin and “Ice” are drugs of a comparable kind.
In the present case the total narcotics of “Ice” and heroin is 65.33 grammes which would come within a bracket of 8 to 12 years, that is, for 50 to 200 grammes had it all been heroin, and a bracket of 10 to 70 grammes, which is 7 to 10 years had it all been “Ice”.
In respect of D1, I consider a starting point of 9½ years appropriate and there is no doubt she is a persistent offender. With that aggravation 10 years’ imprisonment is an appropriate sentence for the present case.
There are no circumstances to warrant any discount and D1 is sentenced to 10 years accordingly, to run consecutive to the present sentence that she is now serving.
In sentencing D2 I have distinguished the present case from Lam Lai Chu, CACC 56/2003. The Court of Appeal there adopted a lower starting point of 21 months because it was considered that the offence in that case, namely, being tenant permitting premises to be used as a divan, was practically one on equal footing with a charge of keeping a divan with sentences ranging from 1 to 2 years’ sentence.
The present case is also to be distinguished from the case of Ho Wing To, CACC 264/2010. In that case the act of the renting was completely distinct from the charge of tenant permitting because the flat was not rented for that purpose. It was after that accused had rented and stayed in the flat that the other accused was allowed to stay and it was after some time that it was discovered that the other accused was keeping drugs in the flat.
That appellant had asked the other accused to take away the drugs as soon as possible but to no avail. So that case contains a unique feature that the circumstances in which X came to stay in the flat made it difficult for the defendant to take the drastic step of evicting X or reporting him to the police and, as said in that case, every case turns on its own facts.
It is clear from the Summary of Facts against D2 that the renting of the flat was a pivotal role or step in enabling the trafficking of drugs, albeit by D1.
I adopt a starting point of 4 years’ imprisonment. I shall give her the full one-third discount for her guilty plea and she is sentenced to 2 years and 8 months’ imprisonment.
Please refer to CACC25/2014 for the relevant appeal(s) to the Court of Appeal.