COURT: The defendant was convicted by the jury of one count of trafficking in dangerous drugs, namely 1 kilogramme of a solid containing 922 grammes of cocaine.
On 28 December 2018, the defendant was intercepted by police officers in the lift lobby of the 35th Floor, Hong Ching House, Kai Ching Estate. The defendant was, at the time, travelling with a Mr Wu Guoyi, whom I refer to as Wu for short.
The police officers searched the defendant and Wu. Inside a grey paper bag that the defendant was carrying, the police found a folded green sweatshirt and wrapped inside it was a transparent resealable bag that contained 1 kilogramme block of a solid of which 922 grammes was cocaine.
Evidence produced at trial established that on the evening of 28 December 2018, the defendant placed a GoGoVan order on her phone to go from Tsing Yi to Yuen Long and then to Kai Tak. The defendant got onto the van with Wu and travelled to the vicinity of a petrol station in Transport Plaza, Yuen Long. Wu then alighted from the vehicle and walked into the toilet of the petrol station. It would appear from the evidence that Wu picked up the block of cocaine at around this time after which Wu returned to the vehicle with the CCTV footage capturing Wu having taken his green sweater off. That was the same green sweater used to wrap and conceal the block of cocaine.
When the defendant and Wu arrived at Kai Ching Estate, Kai Tak, the defendant and Wu went up to the 35th Floor of Hong Ching House. The defendant and Wu were apprehended by the police upon their exit from the lift with the cocaine wrapped inside the green sweater and placed in the grey paper bag which the defendant was carrying on her shoulder.
The defendant gave various explanations in her video-recorded interviews with the police which must have been rejected by the jury. I therefore proceed to sentence the defendant on that basis.
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2020]1 HKLRD 290. I therefore follow the six-step sentencing approach set out in Yusuph.
The first step is to identify the relevant guideline band or bracket applicable to the quantity of drug concerned. Following HKSAR v Abdallah [2009] 2 HKLRD 437, for quantities of 600 grammes to 1,200 grammes of cocaine, the sentencing band is 20 to 23 years’ imprisonment.
The second step is to assess the defendant’s role and culpability based upon the evidence. On the evidence, there is nothing to suggest that the defendant had any role beyond an ordinary courier. I assess her culpability as any other courier.
The third step of the sentencing exercise is to identify where in the relevant band the defendant comes. This would yield a starting point for the sentence. Applying Abdallah, a mathematically calculated place within the sentencing band would be 21 years and 7 months’ imprisonment.
Taking into account the defendant’s role and culpability and the weight of the cocaine in which she trafficked, I cannot see any basis for departing from the mathematically calculated place within the relevant band.
The fourth step requires me to consider whether there are present any aggravating factors which might require me to enhance this starting point. I am not aware of any such aggravating factors in the present case.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence after trial, bearing in mind that personal circumstances for this offence generally count for little. I have borne in mind the observations of the Court of Appeal in Abdallah at paragraph 32 and Yusuph at paragraph 44 where the Court of Appeal stressed the seriousness of drug trafficking and the problems that it brings to families and communities. Accordingly, the defendant’s personal circumstances are rarely a mitigating factor. In light of that, I do not consider that the defendant’s personal circumstances constitute mitigating factors for the purposes of the fifth step.
The sixth and final step is to stand back and look at the overall sentence in order to ensure that it is a fair, just and balanced sentence in all the circumstances of the offence and the offender. In the words of DHCJ McWalters in HKSAR v Suen Yuk Hang, HCCC 143/2021, the judge should ensure that the sentence is not a crushing one but one that is fair, balanced, timely and just.
In applying the sixth step, this court has been assisted by the way in which other sentencing courts have applied this sixth and final step (see HKSAR v Kwan Wai Fan [2021] HKCFI 2036, HKSAR v Chan Ho Kwai [2021] HKCFI 2938 and HKSAR v Cheng Man Kit [2021] HKCFI 3032 plus others).
The defendant in this case is currently 23 years old. She was only 20 years old when she committed the offence in this case.
The defendant have placed before this court a large number of documents relating to the defendant’s upbringing including a letter from the defendant’s parents and her younger brother and a number of certificates from her primary school years and from participation in a wide range of extra-curricular activities including some participation in charitable activities. The materials show a normal, healthy upbringing during the defendant’s primary school years.
As noted in the psychiatrist’s report dated 13 December 2021, the defendant’s academic performance declined since Form 4 after she started to be involved in romantic relationships. The defendant left school at Form 6 and held various odd jobs without any one of them lasting beyond a few months.
The defendant later involved herself in gang fights and developed a smoking habit and features of alcohol dependence. This all came to a stop when the defendant was arrested for this offence in December 2018 and was remanded in custody.
Since being remanded in custody, the defendant appeared to have worked hard in improving her education. The defendant enrolled herself in numerous courses offered by the Chinese University School of Continuing and Professional Studies including various psychology-related courses, a course on nutrition and an investment-related course. Some of the courses have already been completed.
In terms of the defendant’s psychiatric condition, the psychiatrist’s report noted that the defendant had a personality problem with impulsive personality traits and poor maladaptive coping skills but she did not suffer from any formal psychiatric illness.
The defendant is now facing a term of sentence of over 20 years. Even assuming that the defendant receives a full remission of sentence for good behaviour, she would be well in her 30s when she leaves prison. As stated by DHCJ McWalters in the cases already cited above, the question for this court is whether the notional sentence will be crushing on this defendant. I am of the view that it will be.
Tailoring the sentence to the circumstances of this offender without undermining the sentencing principles relevant to trafficking offences, the defendant’s notional sentence will be reduced to 20 years’ imprisonment. In my view, such a sentence is sufficiently punitive and sends a clear message of denunciation and deterrence. At the same time, I hope that the reduced sentence will encourage the defendant to pursue a path of rehabilitation and to continue to improve herself both in terms of her education and her personality.
Defendant, please stand up. I sentence you to a term of 20 years’ imprisonment.