COURT: The defendant, Lai Wing-yin, was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. The defendant pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
Summary of Facts
The Admitted Facts disclosed that there were plainclothed officers conducting an anti-dangerous drug operation in Yau Ma Tei area. They spotted a taxi with “not-for-hire” plate being put up but circling the streets in Yau Ma Tei and found it suspicious. The defendant was seen alighting from the taxi after it came to a stop at Tak Hing Street and entered the building and then they entered the building and the person was the defendant. The defendant later came out from the building and walked towards the taxi. The defendant was intercepted by the police but he tried to flee and was subdued.
A search was carried out on the defendant and also the paper bag he was holding. From the paper bag, the police found what was later confirmed to be 745 grammes of a solid containing 685 grammes of methamphetamine hydrochloride. The defendant was arrested and cautioned for trafficking in a dangerous drug.
At the video-recorded interview conducted under caution later, the defendant said he was a nightshift taxi driver and he had habit of taking dangerous drug.
The estimated street value of the dangerous drug in question was about HK$403,045.
The defendant had HK$3,415, RMB62 and a mobile phone on his person at the time. The defendant admitted he was unlawfully trafficking dangerous drug in question at the material time.
Background and Mitigation
According to the antecedents statement, the defendant is now 59 years of age. He is single and he used to live with his older brother prior to his arrest. The defendant is not a man with a clear record. He had 10 appearances in court since 1984 and altogether 10 times up to now, 13 convictions recorded, five were for trafficking in dangerous drug, and two for possession of dangerous drug.
His last conviction was for possession of dangerous drug and was sentenced to 6 months’ imprisonment in 2017. And according to the antecedents statement, the defendant claimed to have completed secondary 2 level education and had worked as a salesperson earning $16,000 per month.
The defendant also claimed that he abuse various dangerous drugs including cocaine, heroin hydrochloride and ‘Ice’ for 10 years.
Miss Maria So, counsel for the defendant, informed this Court that the defendant never worked as a salesperson but as a professional driver once he obtained his driving licence. He was working as a taxi driver earning around $10,000 to $15,000 a month prior to the arrest. The defendant mixed with undesirable peers and started abusing drugs.
As for the present offence, the defendant wanted to earn quick money due to the pandemic and he agreed to deliver the drugs without knowing the quantity. The defendant is remorseful and during his incarceration his siblings were supportive to him. I was informed that the three sisters are now in court supporting the defendant.
Miss So referred to the authorities of Tam Yi Chun and Abdallah and urged this Court to consider a starting point of 20 years. Miss So also submitted with reference to the case of Herry Jane Yusuph that the role of the defendant was purely that of a courier. Miss So considered that due to the defendant’s similar previous records, the starting point needs to be enhanced and Miss So referred to the cases of Chung Ping Kun and Har Tsz Yui and urged this Court to consider the fact that the defendant’s last trafficking offence was committed around 15 years ago when deciding on the issue of enhancement.
The defendant’s sister, Madam Lai, wrote to this Court, describing the life she and the defendant had after their parents passed away. According to her, the defendant took care of their older brother who had eye problem before the defendant’s incarceration. After the defendant was detained, the older brother suffered from a stroke and is now staying at the home for the aged.
Madam Lai kept visiting the defendant and the defendant expressed his deep remorse to her. Actually it should be younger sister. Sister is not clear, but it is a younger sister, not older sister. So Madam Lai asked this Court to exercise discretion to reduce the sentence.
Sentence
Trafficking in dangerous drug is a serious offence. A person convicted of this offence on indictment is liable to be fined $5 million and to imprisonment for life. The Court of Appeal set down guidelines for the trafficking of ‘Ice’ in the case of Tam Yi Chun. Trafficking 600 grammes of ‘Ice’, the appropriate starting point is 20 years.
In the case of Abdallah, the Court of Appeal gave further guidelines. Trafficking between 600 to 1,200 grammes of ‘Ice’, the starting point is between 20 to 23 years. So the quantity of 685 grammes falls into this band of 600 to 1,200 grammes.
I accept Miss So’s submission that on the evidence before this Court, there is nothing to show that the defendant was anything other than a courier and I will sentence him on that basis. So for the trafficking of 685 grammes of ‘Ice’, I am of the view that a starting point of 20 years and 3 months is appropriate.
There is an aggravating feature in the present case in that the defendant had already been sentenced to gaol for trafficking in dangerous drugs on three different occasions for five counts, 1994, 1999 and 2007, three occasions, five convictions of trafficking in dangerous drugs.
So having considered the defendant’s age and his previous drug related convictions, in particular the five trafficking convictions, I am of the view that an enhancement of 6 months is appropriate. So the enhanced starting point is 20 years and 9 months which I calculated to be 249 months.