COURT: The defendant pleaded guilty before a magistrate to two charges of trafficking in a dangerous drug 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 drug involved, personal background of the defendant and mitigation put forward on her behalf.
The facts of the case may be summarised as follows. The defendant was intercepted when she was leaving a building, pulling a trolley. A transparent resealable plastic bag containing the dangerous drug, which is the subject matter of Charge 1, was found in her hand. She was arrested.
Under caution, she said the drug was for her own consumption. She then led officers to the flat of the building. Police officers gained access of the flat by the keys seized from the defendant and carried out a search. There, the dangerous drugs which are the subject matters of Charge 2 were found. Also found were an electronic scale, spoon, scissors and other items usually connected with dangerous drugs. The defendant admitted all the drug was for her own consumption. In a subsequent video-recorded interview, she repeated similar admission.
I was told that the defendant is now 62 years of age. She had primary school education. She has been unemployed most of the time and living on CSSA. She is single and was living with one of her brothers in the flat where the dangerous drug was found. She was on 15 previous occasions convicted. On three occasions, the convictions were for four charges of trafficking in a dangerous drug. The last such occasion was in 2015 when she was sentenced to a total of 46 months’ imprisonment for two charges of trafficking in dangerous drug. She had also been convicted on several occasions of possession of dangerous drugs. Other offences she had committed include robbery, shoplifting and offence relating to massage establishment.
In mitigation, learned counsel for the defence, Mr Selwyn So, stressed that the defendant had pleaded guilty before a magistrate, and he told the court that the defendant has been drug-dependent since young and she is now very remorseful.
In the present case, the drug that the defendant trafficked in was “Ice”. 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. As far as the narcotic content is concerned, there was a total of 387.88 grammes. 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.
I see no reason in the present case to depart from the tariff. I am of the view that an aggregate starting point of 16 years and 5 months is appropriate for the two charges. This is the fourth time the defendant has been convicted of the offence of trafficking in dangerous drug. For this aggravating factor, having regard to submission of counsel that the defendant is now remorseful and determined to turn over a new leaf and having warned myself against the risk of excessive enhancement, I enhance the starting point by 3 months.
Up to this stage of consideration, the notional total sentence after trial for the two charges is therefore 16 years and 8 months. The defendant relying solely on submission of counsel claimed that around one-quarter of the “Ice” found was intended for her own consumption.
In consideration of this assertion, I have had regard to HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and HKSAR v Tan Xiu Yun [2015] 5 HKLRD 872 and take into account the following matters: the defendant made this assertion immediately upon finding of the drug; most of the drug found was at the home of the defendant; previous convictions of the defendant for possession as well as trafficking of dangerous drug; the estimated cost of the drug and the means of the defendant.
In all the circumstances, I am prepared to accept that a small quantity of the “Ice” seized would have been intended for her own consumption but definitely not as much as the defence claim. Notwithstanding this finding, I have to take into account that even for the offence of possession of dangerous drug, a sentence of custodial nature would be imposed, having regard to the quantity asserted. Moreover, my assessment is that the latent risk for whatever quantity of drug the defendant had intended to reserve for self-consumption was very high.
Having taken into account the above factors and having regard to the Court of Appeal decision in HKSAR v Tam Ling Yuen, CACC 159/2015, HKSAR v Yeung Shek Yung, CACC 314/2016, and HKSAR v Cheung Wai Man, CACC 258/2017, whilst a discount for this reason should normally only be given when a significant proportion of the drug was intended for self-consumption, I am persuaded to give a slight adjustment of 2 months from the starting point.
As a result, the notional total sentence after trial for the two charges is 16½ years. This indeed is the notional sentence after trial I adopt for Charge 2. For Charge 1 which concerned only 0.4 grammes of “Ice”, I adopt a starting point of 30 months. I do not accept that any proportion of this batch of drug would have been intended for self-consumption of the defendant, and for pragmatic reason, I do not enhance the starting point for this charge.
The defendant pleaded guilty before a magistrate and for this, she is entitled to a one-third discount for each charge. Having considered the whole circumstances, including what is said on behalf for the defendant, in my judgment, this is the extent of discount the defendant is entitled to in the present case. I also have regard to the recent Court of Appeal case of HKSAR v Herry Jane Yusuph, CACC 93/2019.
The defendant, please stand up. By reasons of the matters aforesaid, I sentence you the following imprisonment terms: Charge 1, 20 months’ imprisonment; Charge 2, 11 years’ imprisonment. I order the two sentences to run concurrently. You are to serve a total sentence of 11 years for the two charges.