COURT: The defendant pleaded guilty before a magistrate to two charges of trafficking in dangerous drugs and was committed to the Court of First Instance 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 involved, background of the defendant and mitigation put forward on her behalf. I also have regard to the recent Court of Appeal case of HKSAR v Herry Jane Yusuph, CACC 93/2019.
The facts of the case may be summarized as follows.
The defendant was intercepted when she was rushing on the street carrying a plastic bag containing the dangerous drug, which is the subject matter of Charge 1. She was arrested.
Under caution, she stated she was bringing the dangerous drugs to a flat upstairs for packaging for a promised reward of $6,000. She said she did this as the financial situation of her family was not good. She then led officers to the flat.
There, the dangerous drugs which are the subject matters of Charge 2 were found. Also found were two weighing scales, two packets of resealable transparent plastic bags, sealing machines and other items commonly related to dangerous drug. The defendant admitted she had brought the dangerous drugs there earlier.
In a subsequent video-recorded interview, she repeated similar admission. She further said she was introduced to the job by a former colleague called “Siu Kut”. She was promised a weekly reward of $6,000 and had received such reward three times. Her task was to pick up the drugs from a driver, bring the item to the flat, weigh it and repackage it and pass them to customers.
I was told that the defendant is 25 years of age. She studied up to Form 3 and had worked as a waitress. She is single and living alone. In 2014, for a triad-related offence, she was put on probation. She has no previous conviction relating to dangerous drug.
In mitigation, learned counsel for the defence, Mr Lau, stressed that defendant had pleaded guilty before a magistrate. Mr Lau told the court that the defendant had been in steady employment until April 2020 when she was laid off due to bad economy. The defendant was not able to find a job since then and it was under heavy financial difficulties that she committed the present offence. Mr Lau asked the court to disregard the previous conviction of the defendant and take into account the effort the defendant had made in assisting the authority.
The defence submitted letters of various members of her family and from the chairman of her residence association, all speak well of the defendant. They found the defendant a person of good nature and was only influenced by undesirable peers and believed in the remorse of the defendant. In her own letter, the defendant expressed remorse.
In the present case, the defendant had trafficked in three types of dangerous drug, although Charge 1 only involved ‘Ice’. Charge 2 did not involve ‘Ice’, it involved cocaine and ketamine. There were 491 grammes of ‘Ice’. The Court of Appeal held in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 that in a case of trafficking in ‘Ice’ where the narcotic content was between 300 and 600 grammes, an imprisonment term of 15 to 20 years should be considered.
There were also 42.47 grammes of cocaine and 129.8 grammes of ketamine. In AG v Pedro Nel Rojas [1994] 2 HKCLR 69, the Court of Appeal held that the sentencing guidelines for trafficking in heroin are applicable to cases of trafficking in cocaine. Following R v Lau Tak Ming [1990] 2 HKLR 370, for that quantity, a sentence of 5 to 8 years should be considered. For ketamine, according to SJ v Hii Siew Cheng [2009] 1 HKLRD 1, if the narcotic content is 50 to 300 grammes, a sentence of 6 to 9 years’ imprisonment should be considered. I see no reason in the present case to depart from the tariffs.
For Charge 1 which involved ‘Ice’ only, I adopt a starting point of 18 years and 2 months. For Charge 2, as it involved two types of drugs, I follow the approach as stated by the Court of Appeal in HKSAR v Islam S M Majharul [2020] 3 HKLRD 146. I have also had regard to the Court of Appeal cases such as HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Yau Ka Ming, CACC 144/2013, HKSAR v Chan Yuk Leong, CACC 318/2013 and HKSAR v Cheung Wai Man [2019] 1 HKLRD 817.
I adopt the combined approach and checked whether the starting point to be adopted is fair and appropriate by testing it against the absurdity test, the conversion test and the ratio test. In the course of the exercise, I note that cocaine was the more potent drug in terms of harm but ketamine was of a higher quantity. I have also had regard to the two possible aggravating features of a wider market and the effect on users of combination of dangerous drugs. I remind myself that in determining an enhancement to a sentence for an aggravating factor, I should ensure that the original starting point should be proportionate to the actual sentence. The degree of enhancement should be in reasonable proportion to the basic sentence. And the total ultimate sentence should not be excessive.
Having considered all the circumstances for Charge 2, I adopt a starting point of 9 years which includes an enhancement of around 3 months for the said aggravating factors.
The defendant pleaded guilty to two charges. In the circumstances of the case, it is appropriate to determine the total sentence having regard to the total quantity of all the drugs which the defendant had trafficked in and the aggravating factors involved. As three different types of drugs were involved in the exercise, I adopt the same approach as I have for Charge 2 and bear in mind that overall ‘Ice’ was the prominent drug, both in terms of degree of harm and quantity.
In all the circumstances, I am of the view that only an overall notional sentence after trial for the two charges of 19 years and 1 month is sufficient to reflect the overall culpability of the defendant. This notional sentence after trial will include an enhancement of around 6 months as the defendant was trafficking in three types of dangerous drugs.
The defendant pleaded guilty before a magistrate, and for this, she is entitled to a one-third discount for each charge and the ultimate aggregate sentence. I am persuaded to give the defendant 2 more months of discount for her effort in assisting the authority and this discount is to be reflected in the overall sentence. Having considered the whole circumstances including what was said on behalf of the defendant by learned counsel, in my judgment, this is the extent of discount the defendant is entitled to in the present case. Giving the said total discount from the overall notional sentence after trial of 19 years and 1 month, 12½ years is the overall ultimate sentence.
For the reasons I have said, I sentence you to the following imprisonment terms: Charge 1, 12 years and 1 month. Charge 2, 6 years. As said, taking into account the total discount you are entitled to, you should serve a total sentence of 12½ years. To achieve this, I order 5 months of the sentence of Charge 2 to run consecutively to that of Charge 1.
You are to serve a total sentence of 12½ years for the two charges.