COURT: The defendant has pleaded guilty to one count of trafficking in dangerous drugs.
The particulars of the offence are that on 6 August 2013 at the Ground Floor of Fu Ong Mansion in Tung Chau Street, Sham Shui Po, Kowloon, the defendant was trafficking in an array of drugs consisting of 27.48 grammes of a crystalline solid containing 26.84 grammes methamphetamine hydrochloride, otherwise known as “Ice”, 1.01 grammes of cannabis resin, 1.01 grammes of cannabis in herbal form, 27.95 grammes of a powder containing 22.84 grammes of ketamine, and 14 tablets containing 0.11 grammes of diazepam.
The drugs in question were found in a bag he was holding, and after a struggle with the police he was arrested and later charged. He was interviewed under caution and remained silent in accordance with his rights.
The retail value of the drugs seized was about HK$21,100.
The defendant was brought before the Magistrates Court and after a series of court attendances on 3 January 2014 upon entering a plea of not guilty was committed for trial in the High Court. On 28 March 2014 a pre-trial review hearing in this court took place in relation to his case. It was indicated on his behalf that he would contest the charge against him and that the case would proceed to trial on 23 April 2014 with five days reserved.
Trial preparation and witnesses were arranged for the trial of the defendant. On 23 April 2014, on the first day of trial, the court was informed for the first time that he would change his plea and not contest the proceedings. The charges were then read to him and he pleaded guilty.
It is the practice of the court to grant a discount of sentence of one-third to a defendant who pleads guilty. I mention this because I would not have otherwise reduced the sentence by a full one-third. If not for the authority of Li Tak Yin which states that even though a one-third discount “is not a rigid rule” the fact that a guilty plea has been tendered on the first day of trial is generally not of itself sound reason for reducing the discount of one-third that is normally given. See also the case of Ma Ming.
In England and Wales a different approach has been taken as seen in the recent case of R v David Caley and others where a one-third discount on the plea of guilty is given at the first reasonable opportunity, taking into account the stage in the proceedings that the defendant has indicated his intention to plead guilty and the circumstances in which it is given.
The facts of the case upon which the guilty plea has been entered by the defendant are that on the evening of 5 August 2013 a team of police officers mounted an anti-drug operation in the vicinity of Tung Chau Street, Sham Shui Po, Kowloon. Shortly before midnight, the police officers observed the defendant entering Fu Ong Mansion holding a plastic bag in his hand.
By this time it was after midnight on 6 August 2013. He tried to walk away from the police officers but was stopped. He was asked where he lived to which he said he lived in the building but refused to say in which flat. He was also asked to produce evidence of identity but was unable to do so. The police then searched the defendant on suspicion that he was in possession of drugs.
No drugs were found on his person and the police officers then examined the plastic bag the defendant was carrying. Inside they found several packets of drugs as specified in the charge. Police officers then tried to arrest the defendant but he struggled with them. He was eventually apprehended by the police officers.
The defendant is 29 years of age of Indian nationality, who is a resident of Hong Kong. The defendant has three previous convictions. Two convictions in 2011 for possession of dangerous drugs and one conviction of theft in 2012. He was ordered to attend DATC in relation to one of the drug convictions and the theft conviction and to serve 6 months’ imprisonment for the other drug conviction.
I note in relation to the two drug offences he on two separate occasions failed to answer bail. Very little, if anything, has been put on his behalf by way of meaningful mitigation. He has been given opportunities to rehabilitate himself and shed the dependency on drugs that he claims he has. He was found with an array of drugs for the purpose of trade and that was evident by the type and quantity of drugs he had on him and the manner in which they had been packaged.
In mitigation it was submitted that he is addicted to drugs, in particular with respect to “Ice”, and in order to feed his habit he traded in drugs. It is claimed that he was offered this package of drugs at a cheap price which he acquired for both self-consumption and trade.
I accept that the previous drug convictions related to “Ice” and that he has an addiction to that drug. For the purposes of sentencing I would allow a small quantity of the “Ice” in his possession for self-consumption and would make an allowance accordingly.
It was also submitted on his behalf that he wished to assist the authorities with information in relation to the drug trade. The sentencing of the defendant was adjourned for one week in order to obtain and evaluate the information he was prepared to provide the authorities. I am informed that the information is of no value or use and the defendant will receive no reduction as a consequence in relation to this aspect of his mitigation.
The two drugs of greatest quantity that the defendant had on him were “Ice” and ketamine. He had 26.85 grammes of “Ice” and according to the case of Ching Kwok Hung and Capitania, a starting point of 7 years and 10 months’ imprisonment would apply for the quantity of “Ice”. He had 22.84 grammes of ketamine and according to the case of Hii Siew Cheng a starting point of 4 years and 8 months’ imprisonment would apply for the quantity of ketamine. The other three drugs were 1.01 grammes each of cannabis resin and cannabis and 0.11 grammes of diazepam, consisting of 14 tablets. These drugs would receive sentences varying from 6 up to 16 months’ imprisonment.
I would approach the sentencing exercise by looking at the overall quantity of the more serious drugs taking the narcotic content of the “Ice” and ketamine together and impose a starting point according to the sentencing guideline for “Ice”. I bear in mind, without including the narcotic content that the defendant was also in possession of herbal cannabis, cannabis resin and diazepam and clearly in circumstances where he was offering an array of drugs to suit the tastes of different potential customers.
This results in a combined narcotic content of 49.68 grammes and under the sentencing guideline for “Ice” a starting point after trial of 9 years’ imprisonment is imposed. I will reduce it by 9 months to factor in that some of the “Ice” was self-consumption.
With a reduced starting point of 8 years and 3 months and a one-third discount for the plea of guilty the defendant is sentenced to 5 years and 6 months’ imprisonment.