COURT: The defendant had pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug and was committed before me for sentence.
In the sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug involved, personal background of the defendant and mitigation put forward on his behalf by learned defence counsel. 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 summarised as follows.
The defendant was stopped by police officers on a street in Kowloon City, upon search a green plastic bag was found in the rucksack the defendant was carrying. Inside the green plastic bag were 11 transparent resealable plastic bags containing a total of 84.93 grammes of a crystalline solid containing 83.11 grammes of methamphetamine hydrochloride. The defendant tried to flee but was stopped.
Under caution, he stated that the ‘Ice’ seized was given to him by another person who told him to take it to Mong Kok for a promised reward of $2,000.
I was told that the defendant is now 35 years of age. He had received education up to Form 4 and had worked as a construction worker. He is not married but had a girlfriend. And before they separated, she has given birth to their son, now 4 years old, and their daughter, now 3 years old. He started to have conviction in 2004. For two offences of assault, he had to work 200 hours of voluntary work under CSO. He was convicted for trafficking in dangerous drugs in 2006, and again in 2010. In 2008, he was convicted for possession of dangerous drug.
Learned counsel for the defence, Mr Ho, urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity and now that he is remorseful. He told the court that the defendant committed the offence as he was in need of money. He asked the court to be as lenient as possible.
The charge concerns 83.11 grammes of ‘Ice’. Tariff for trafficking in ‘Ice’ was set out in the case HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, in which the Court of Appeal held that if narcotic content is between 70 and 300 grammes, 11 to 15 years’ imprisonment should be considered. I see no reason to depart from the tariff.
This is the third time the defendant committed this type of offence. I noted the defendant was sentenced to training centre by a magistrate for his first such conviction, and therefore I am of the view that the case might have been relatively less serious on that occasion. That said, the defendant did not reform after having received training and soon committed the offence for the second time.
In the present case, he was trafficking in either a more harmful type of drug or in a larger quantity of drug. Having considered the submissions of Mr Ho, I found an enhancement of sentence is warranted in the circumstances. Having reminded myself of the risk of over-enhancement, in my judgment, the starting point should be enhanced by about 3 months. I therefore adopt a notional starting point after trial of 11 years and 5 months.
The defendant pleaded guilty before a magistrate and for this he is entitled to a one-third discount. Having considered the whole circumstances including mitigation put forward on the defendant’s behalf bearing in mind that the defendant has children of tender age and his parents are both elderlies, I am of the view that one-third is the extent of discount the defendant is entitled to.
For the reasons I mentioned, I sentence you to an imprisonment term of 7 years and 7 months.