COURT: The defendant has pleaded guilty before a magistrate to one charge of trafficking in dangerous drugs and was committed before me 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, personal background of the defendant and mitigation put forward on his behalf by learned defence counsel.
The facts of the case may be summarised as follows. The defendant was stopped by police officers on the street. He was taken to a toilet for a search. Upon search, the dangerous drugs as set out in the charge were found in the diaper worn by the defendant. There were two types of drugs, ‘Ice’ and cocaine. The ‘Ice’ was contained in 21 plastic bags and the cocaine in 25 plastic bags. Under caution, the defendant admitted that he trafficked in the dangerous drugs for earning money.
I was told that the defendant is single, now 24 years of age, living with his father. His parents had divorced long time ago and he had very little contact with his mother. He had received education up to Form 3 and had been working as a cook until his arrest.
The defendant has criminal convictions records. In 2011, he was put on probation for a charge of computer offence and two charges of shoplifting. In 2014, he was sentenced to training centre for an offence relating to dutiable commodities and the offence of AOABH.
Learned counsel for the defence, Ms Fanny Wong, urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity and that he is now remorseful. She also asked the court to take into account that all the offences the defendant had committed before were of minor nature. This was the first time he committed the offence of trafficking in a dangerous drug and he is still relatively young. She told the court that the defendant started to consume ketamine as he had to work long hours in the kitchen. Such drug dependence has affected his health and he has to wear diaper when going out.
The defence submitted a letter written by the defendant in which he expressed remorse and desire to turn over a new leaf. I was told that the defendant is minded to polish his cooking skills so that he will be better prepared to return to the community. A letter written by the father of the defendant was also submitted. The father believed in the remorse of the defendant, indicated his support to the son and pleaded leniency on his behalf.
The quantity of drugs involved was respectively 93.9 grammes of ‘Ice’ and 2.46 grammes of cocaine. ‘Ice’ was obviously the more prominent one for the purpose of sentence in this case, both in terms of harm and quantity. Tariffs for trafficking in ‘Ice’ were set out in AG v Tam Yi Chun [2014] 3 HKLRD 691 in which the Court of Appeal held that if the narcotic content is between 70 to 300 grammes, 11 to 15 years’ imprisonment should be considered.
I see no reason to depart from the tariffs. I accept the submission of Ms Wong that the role of the defendant was low in the trafficking hierarchy. In all the circumstances, for the quantity of ‘Ice’, I am of the view that a starting point close to 11 years and 5 months is appropriate.
The defendant trafficked in two types of drugs. The other type of drug was cocaine. The quantity was just 2.46 grammes. This quantity of cocaine by itself has little significance on sentence but I have to have regard to the two possible aggravating features of a wider market and the effect on users of combination of dangerous drugs.
Having considered the whole of the circumstances and having regard to the recent Court of Appeal case of HKSAR v Herry Jane Yusuph, CACC 93/2019, I adopt a notional sentence after trial of 11½ years. The defendant pleaded guilty before a magistrate, and for this, he is entitled to a one-third discount. Having considered the whole circumstances, including the mitigation put forward on the defendant’s behalf, I am of the view that one-third is the extent of discount the defendant is entitled to.
Defendant, please stand up. For the reasons I have mentioned, I sentence you to an imprisonment term of 7 years and 8 months.