On 13 December 2013, the defendant pleaded guilty to one count of trafficking in a dangerous drug, contrary to sections (4)(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and one count of possession of a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap 177.
This morning, he confirmed his plea before me and admitted the Summary of Facts.
Briefly, the defendant was stopped by the police on 15 May 2013 when he was about to enter his premises. Upon search of the premises, the police found from the inside of a computer table drawer six bags of “Ice”, which was a total of 83.78 grammes of a crystalline solid containing 83.6 grammes of methamphetamine hydrochloride; four dozens of empty re-sealable plastic bags; an electronic scale; and a forged Hong Kong identity card bearing the defendant’s photo, but with incorrect particulars.
When video-interviewed under caution, the defendant admitted that both the “Ice” and the forged identity card belonged to him. He, however, claimed that the “Ice” was for his own consumption, and the lot found by the police would be sufficient for his use for about one month.
As regards the identity card, the defendant said that his friend forged the card for him for fun only, and he had never used it.
The estimated street value of the drug was about HK$63,000.
The defendant’s background and mitigation
The defendant is aged 39 and is single. He was educated up to Form 3 level. After quitting school, the defendant had worked as a kitchen apprentice and a construction worker. It was said that at the time of his arrest, the defendant was in partnership with a friend conducting the business of diamond polishing earning about 40,000 to 50,000 a month Hong Kong dollars.
The defendant has been before the court on eight previous occasions, with a total of 10 convictions: two of those were possession of Part I Poison; four were possession of a dangerous drug; two were living on the earnings of prostitution; one was possession of pipe and equipment fit for smoking a dangerous drug; and one was disorderly conduct.
He was last sentenced to four weeks’ imprisonment in October 2012 and was released on that same day. In other words, within just about half a year, he committed the present offences.
In mitigation, Mr Fan, for the defendant, said that the drug was given to the defendant as repayment of a gambling debt owed to him by a friend. Mr Fan further submitted that since the defendant is a drug addict who has had the habit for over 20 years, he might use part of the dangerous drug for self-consumption, although the defendant now admitted that at the time when he was arrested, he possessed the seized drug for the purposes of trafficking.
Mr Fan also submitted on behalf of the defendant that although a bank statement covering the period from April to October 2012 showed the defendant having only a zero balance in October 2012, and that there was a telephone bill showing that there was an overdue payment of HK$380, the defendant was not in any financial difficulty and he simply had forgotten to pay the telephone bill. It was also said that the defendant had another more active bank account with quite a large balance.
The sentence
The tariffs for trafficking in “Ice” were laid down in Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 and corrected in HKSAR v Capitania CACC 28/2004, 11 August 2004 (unreported).
For trafficking between 70 and 300 grammes of “Ice”, a term of 10 to 14 years’ imprisonment is called for.
Having considered the amount of “Ice” involved, and the facts of this case, I am going to adopt a starting point of 10 years.
Although the defendant, through Mr Fan, claimed that part of the drug was for his own consumption, I do not believe that he would have any significant part of it for his own self‑consumption which would materially affect the sentence.
Although Mr Fan submitted that the defendant had sufficient financial means and would not resort to selling the drug for a profit, the documents before me did not show such a picture.
I, therefore, reject his claim that he would have any significant amount for his own consumption, not to mention his claim that the drug was given to him as repayment of a gambling debt.
In any event, possession of a dangerous drug itself carries with it a penalty: see HKSAR v Wong Suet Hau [2002] 1 HKLRD 69.
Therefore, I do not consider this claim of having the drug for self-consumption to have any significant impact on the sentence.
In respect of the offence of possession of a forged identity card, I consider a starting point of 18 months to be appropriate. Although the defendant is a Hong Kong resident, as pointed out by Yeung JA (as he then was) in HKSAR v Lau Kwok Wo CACC 181/2008, the defendant must have a purpose to serve by having in his possession a forged identity card.
In this case, I completely reject the defendant’s claim that the card was only made for fun. As observed by the Court of Appeal in HKSAR v Li Chang Li [2004-2005] HKCLRT 193:
“Generally speaking, a document of identity cannot possibly be a plaything or collector’s item.”
I am sure that the defendant had the forged identity card with him, not for fun but for the purpose of concealing his true identity or using it for an unlawful purpose when the situation so requires.
The defendant pleaded guilty, and he would receive a one‑third reduction for that. Other than his plea, there is nothing which would warrant any further reduction.
The defendant is, therefore, to serve a term of 80 months’ imprisonment for the 1st count, and 12 months’ for the 2nd count.
Since these two were completely separate and distinct offences, I consider it appropriate for the two terms to be served wholly consecutively: see, for example, HKSAR v Fan King Lam CACC 220/2010, 30 September 2011, (unreported); and HKSAR v Chiu Kwok Ping CACC 250/2011, 12 January 2012 (unreported).
As a result, the correct totality in this case is to have the two terms served wholly consecutively. Therefore, the defendant is to serve a total term of 92 months.