COURT: The defendant was charged with trafficking in a dangerous drug, namely 32.51 grammes of a crystalline solid containing 31.37 grammes of methamphetamine hydrochloride. He was convicted by the jury after trial of simple possession of the same amount of drugs.
The defendant is aged 32 or 33 and has one previous conviction for attempted robbery for which he was sent down for 6 years.
After his conviction, because of the fact that I was told he was addicted to drugs, I called for a Drug Addiction Treatment Centre report and also a background report. It is clear from the Drug Addiction Treatment Centre report that he is a drug addict.
He is married and lives with his mother and two children and wife at a self-owned flat. His mother is a house wife, but has a shop with rental receivable of $20,000 a month. His wife is a housewife and he has two young children, aged one and aged three months. He apparently fell into bad company when he was younger and thus explained his previous conviction of attempted robbery.
He told the probation officer that he took “ice” shortly after his discharge from prison in 2007 and for the present offence he revealed that he had bought the drugs as he needed to take the drugs every day at his workplace and at his home. He claimed to the probation officer that on the day of his arrest a small packet of “ice” was found on him and the rest were found inside his house.
At trial the evidence of the police officers was that all the drugs in this charge was found on the defendant’s person when he was apprehended in the car park near his home. The defendant’s evidence on oath was that he had no drugs on him and that he was framed.
However, the defendant indicated to the probation officer that he was ready to turn over a new leaf and was willing to enter into a serious drug withdrawal treatment in order to get rid of his drug problems.
Whilst the defendant was on bail awaiting trial he had been employed in a transportation company from March 2014 and the owner of the company actually revealed to the probation officer that the defendant is a hard-working individual and would be prepared to reemploy him once he is released from prison.
Mr Allan has urged this court to consider sending the defendant to the Drug Addiction Treatment Centre as he is found suitable to be admitted there. However, I do not consider that a DATC sentence would be appropriate in this case because there is no sign of remorse, except after conviction. It was a full trial where allegations were made against police officers that no drugs were found on him at the time of arrest. I see no mitigation at all in this present case. Having said that, I have to consider the circumstances of the offence in assessing an appropriate sentence for the possession of these dangerous drugs.
The case of HKSAR v Mok Cho Tik [2001] 1 HKC 261 is very helpful in helping me to assess an appropriate sentence in this case. There the Court of Appeal was considering an appeal against sentence for simple possession if “ice”. The amount of drugs in that case was 15.724 grammes of methamphetamine hydrochloride. These drugs were found inside premises to which the appellant in that case had keys to. The Court of Appeal went through the cases in relation to possession of “ice” and in the headnote to this case at paragraph 1 the Court of Appeal said that:
“The starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, but that was not the be all and end all of the appropriate starting point. The quantity would be the main governing factor which would determine where the starting point would lie.”
The Court of Appeal went on to consider possession of such a large amount of drugs - which I note is much less than what we have in the present case - they went on to consider the latent risk factor.
In the Mok case the appellant had said that though the drugs are for his own consumption and not for sale, when others came to his premises he would share his drugs with them. So the Court of Appeal considered that a self-evidentially high risk factor and thus decided that an enhancement of 12 months’ imprisonment would be appropriate in that case.
Now, in our present case the amount is 31.38 grammes of “ice”. The defendant was found carrying these drugs in a car park, although near his home, certainly the drugs were not in his home. The amount of drugs in this case cannot be said to be small, so there is risk that he may be tempted to supply the drugs to others or share it with others.
So although the latent risk factor would not be as high as in the Mok case, I consider, therefore, that as far as the starting point in this case is concerned, a 2 years’ imprisonment starting point is appropriate and I consider that a 6 month enhancement for latent risk would be appropriate in this case.
The defendant, as I have said, has no mitigating factor that I can take into account and therefore I sentence him to 2 and a half years’ imprisonment.