COURT: The defendant pleaded guilty before a magistrate to one charge of trafficking in dangerous drugs 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 drugs involved, personal background of the defendant and mitigation put forward on her behalf. 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 intercepted when she was about to leave her residential flat, which had been under police surveillance. She was escorted back to the flat and a search was conducted on her. In the inner pocket of her jacket, a plastic bag containing 13.5 grammes of a crystalline solid containing 13 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’, was found.
Then, a search was conducted inside the flat. Further dangerous drugs, which were ‘Ice’ and cocaine, were found. One electronic scale and numerous unused resealable plastic bags were also found.
Under caution, the defendant admitted that all the drugs belong to her and the drug found on her person was for self-consumption.
In a subsequent video-recorded interview, she repeated similar admission. She further said she bought the drug from an unknown seller for $7,000. Amongst the drugs found inside the flat, the three plastic bags of cocaine were given to her by the seller for free and she did not know what they were. The electronic scale found was for weighing items. She said she had been addicted to dangerous drugs for three years and all the drugs seized were for her self-consumption. And sometimes she would share them with friends.
I was told that the defendant is now 32 years of age. She has studied up to Form 5 and had worked as a waitress. She does not have a clear record. In 2020, she was convicted for one charge of possession of dangerous drug and was sentenced to 16 months’ imprisonment. This is the first time she commits the present offence.
In mitigation, learned counsel for the defence, Ms Flora Cheng, stressed that the defendant had pleaded guilty at the earliest opportunity. She told the court that the defendant became addicted some two years ago. She was also in need of money to assist her brother to pay off a debt. It was in such circumstances that the defendant committed the offence in order to earn quick money. She has been cooperative with the authority and is now full of remorse. A letter written by the defendant herself was produced in which she set out the circumstances leading to the offence and expressed remorse.
In the present case, the defendant had trafficked in two types of dangerous drugs, namely, ‘Ice’ and cocaine. There were 124.9 grammes of ‘Ice’. 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 70 and 300 grammes, an imprisonment term of 11 to 15 years should be considered. As regards cocaine, the Court of Appeal held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69 that the sentencing guidelines for trafficking in heroin are applicable to cases of trafficking in cocaine. There were 30.82 grammes of cocaine. Following Queen v Lau Tak Ming [1990] 2 HKLR 370, for this quantity, a sentence of 5 to 8 years’ imprisonment should be considered.
I see no reason in the present case to depart from the tariffs.
As the case involved two types of drugs, I follow the approach as stated by the Court of Appeal in HKSAR v Islam S M Majharul [2020] 3 HKLRD 146. I have also have regard to the Court of Appeal cases such as HKSAR v Yip Wai Yin [2004] 3 HKC 367; HKSAR v Yau Ka Ming, CACC 144/2013; HKSAR v Chan Yuk Leong, CACC 318/2013 and HKSAR v Cheung Wai Man [2019] 1 HKLRD 817.
I adopted the combined approach and checked whether the starting point to be adopted is fair and appropriate by testing it against the absurdity test, the conversion test and the ratio test. In the course of the exercise, I note that ‘Ice’ was the more potent drug in terms of harm and also was of a higher quantity. I have also have regard to the two possible aggravating features of a wider market and the effect on users of combination of dangerous drugs. I remind myself that in determining an enhancement to a sentence by any aggravating factor, I should ensure that the original starting point should be proportionate to the actual sentence, the degree of enhancement should be in reasonable proportion to the basic sentence and the total ultimate sentence should not be excessive.
Having considered all the circumstances, I am of the view that an enhancement for the said aggravating factors of around 5 months from the most favourable starting point, which is arrived at by the conversion test, should be appropriate. I therefore adopt a notional sentence after trial of 12½ years.
The defendant pleaded guilty before a magistrate, and for this she is entitled to a one-third discount. There is other information before me for which the defendant is entitled to further discount. As a result, I am persuaded to give the defendant a total discount of about 45 per cent. Having considered the whole circumstances including what were said on behalf, in my judgment, this is the extent of discount the defendant is entitled to in the present case.
Defendant please stand up. By reason of the matters aforesaid, I sentence you to an imprisonment term of 6 years and 11 months.