COURT: The defendant pleaded guilty before a magistrate to two charges of trafficking in a dangerous drug and was committed to the Court of First Instance of the High Court for sentence. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs concerned, personal background of the defendant and mitigation put forward on his behalf. I also have regard to the recent Court of Appeal decision of HKSAR v Herry Jane Yusuph, CACC 93/2019.
The facts of the case may be summarised as follows. The defendant was intercepted by customs officers when he arrived Hong Kong by air. Upon search of his suitcase, five wine bottles each containing cocaine in liquid form were found. The total quantity was 11.04 kilogrammes of a liquid containing 4,201 grammes of cocaine. Also found in a suitcase was a bag containing two plastic bags each containing the dangerous drug commonly known as ‘Ice’. The total quantity was 6.89 grammes of a crystalline solid containing 6.76 grammes of methamphetamine hydrochloride.
The defendant admitted possession of the ‘Ice’ and said it was for his consumption. He also admitted to have brought the wine from Malaysia for a reward of about 4,000 dollars in Malaysian currency.
I was told that the defendant is the holder of a Malaysia passport. He is 31 years of age, single. He has studied up to Form 5 level. He was a tattoo artist. He has no criminal conviction record in Hong Kong.
In mitigation, learned counsel for the defence, Ms Emily Cheung stressed that the defendant had pleaded guilty at the earliest opportunity. She also said the defendant was lured into committing the offence because he was in debt. She urged the court to take into account that the best time of the defendant’s life is ruined and he is now in full remorse.
Ms Cheung also submitted that despite there were two types of drugs, there is no evidence to indicate that the two types would be mixed together to form another type of drug.
The defendant trafficked in two types of dangerous drugs, cocaine and ‘Ice’. Despite at the time of arrest the defendant asserted that the ‘Ice’ was for his self-consumption, he now admits that it was not the case. The major type of drug the defendant trafficked in was cocaine. The Court of Appeal held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69, that in a case of trafficking in cocaine, the guidelines in R v Lau Tak Ming [1990] 2 HKLR 370 is applicable since the narcotic content of the two drugs is very closely alike in the degree of harm.
In Lau Tak Ming, a sentence of more than 20 years’ imprisonment was suggested for a case of trafficking in heroin if the narcotic content is over 600 grammes.
In the subsequent case of HKSAR v Abdallah, CACC 304/2008, the Court of Appeal held that a sentence of 26 to 30 years’ imprisonment should be considered if the narcotic content of the ‘Ice’ trafficked was between 4,000 and 15,000 grammes.
For trafficking in ‘Ice’ according to HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, a sentence of 3 to 7 years should be considered if the narcotic content is up to 10 grammes. I see no reason to justify any departure from the tariffs mentioned.
There was a significant aggravating feature in that the defendant was bringing the drugs into Hong Kong. Having regard to HKSAR v Abdallah, HKSAR v Chung Ping Kun, CACC 85/2014, and HKSAR v Yeung Lee Ming Simon [2018] 1 HKLRD 291(286?), and bearing in mind the risk of excessive enhancement, I am of the view that the starting point should be enhanced by about 27 months for this factor in relation to the cocaine and about 3 months for the ‘Ice’.
Having considered the whole circumstances, in my judgment the following notional sentences after trial are appropriate: Charge 1, 28 years and 3 months; Charge 2, 5 years and 9 months.
The defendant is entitled to a one-third discount for his guilty plea before a magistrate, his previous clear record and the remorse he has expressed. Having considered the whole circumstances including what learned counsel said on his behalf, in my judgment one-third is the extent of discount the defendant is entitled to in this case.
So defendant please stand up. For the reasons I have mentioned I sentence you to the following immediate imprisonment terms: Charge 1, 18 years and 10 months; Charge 2, 3 years and 10 months.
Having regard to the circumstances in which the two offences were committed, I am of the view that a concurrent sentence should have been appropriate if not for the aggravating feature that two different types of drugs were trafficked at the same time.
In considering the impact of this aggravating feature on a sentence, I bear in mind the submission of Ms Cheung in this regard and also that the quantity of ‘Ice’ was relatively small.
Taking into consideration the aggravating factor which I have just said and having regard to totality, I order 2 months of the sentence imposed on Charge 2 to run consecutively to that of Charge 1. You therefore are to serve a total sentence of 19 years for the two charges.