COURT: The defendant pleaded guilty before a magistrate to one charge 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 his behalf.
The facts of the case may be summarised as follows. The defendant was intercepted on a street. The dangerous drug in question was found contained in four resealable transparent plastic bags which was put in two opened potato chip bags placed inside the plastic bag the defendant was carrying. Under caution, the defendant admitted that he was to deliver the drug for a promised reward of $1,000.
I was told that the defendant is now 19 years of age. He is single. He had received education up to Form 3 and was unemployed at the time of the offence. He committed the present offence while on probation. Such order was made on 19 February 2019 upon his conviction for an offence of aiding and abetting wounding with intent to do grievous bodily harm. Apart from this, he has no other previous conviction.
In mitigation, learned counsel for the defence Ms Vivian Wong stressed that the defendant pleaded guilty at the earliest opportunity and he is now in full remorse. He will take up courses while in prison to equip himself to return to the community. Ms Wong informed the court that the defendant had been participating in school activities, including academic activities, sports, and community services and certificates and awards were presented to him for these. However, after he was convicted for the offence mentioned above, the school did not allow him to attend classes in the normal manner. As a result, he had difficulties catching up and eventually quitted school.
He was lured into committing this offence for a reward of $1,000. He had refused taking up the job at the beginning but succumbed after some struggle when there were repeated requests.
In his own letter produced to court, the defendant gave an account of the circumstances in which he came to commit the offence, expressed remorse and determination to turn over a new leaf. The defence also produced a letter written by the father of the defendant and a letter written by the social worker who has been taking care of the defendant. The father said that poor relationship in the family, financial situation of the family as well as bad influence of peer attribute to the foolish act of the defendant.
The social worker said she was satisfied that the defendant is now full of remorse. Both pleaded leniency on behalf of the defendant. Ms Wong informed the court that relationship between the defendant and his parents has improved a lot and the defendant now appreciates their love and care.
The defendant trafficked in 974 grammes of a drug commonly known as ‘Ice’. The Court of Appeal held in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 that in the case of trafficking in ‘Ice’ where the narcotic content exceeds 600 grammes, the tariff in HKSAR v Abdallah [2009] 2 HKLRD 437 is applicable.
In Abdallah, it was held that if the narcotic content is between 600 and 1,200 grammes, an imprisonment term of 20 to 23 years should be considered. I see no reason in the present case to depart from the tariff. I consider sentence on the basis that the role of the defendant was at the low end of trafficking hierarchy. In all the circumstances, I adopt a starting point of 21 years and 10 months.
The defendant pleaded guilty before a magistrate and for this he is entitled to a one-third discount. Having considered the whole circumstances, including what is said ably by counsel on behalf of defendant, having regard to the sentencing approach as stated by the Court of Appeal in HKSAR v Herry Jane Yusuph, CACC 93/2019. In my judgment, this is the extent of discount the defendant is entitled to in the present case.
The defendant committed the present offence in breach of a probation order. In her submission, Ms Wong stressed that the defendant committed that case at the age of 15. He had been remanded for at least around two weeks for that case and have completed almost 80 per cent of his probation when he committed the present offence.
In consideration, I have considered the transcript of the hearing of mitigation and making of the probation order, as well as the brief facts of the case. While the eight accused in that case were juveniles but the facts reveal a bad case of abuse. A young girl at the age of 14 was subjected to prolonged physical assault and humiliation, some were of sexual nature, by this group of youngsters.
The defendant did not actively take part in the actual assault but his conduct clearly amounted to aiding and abetting. The duration of the probation order has now expired.
In the whole of the circumstances, having regard to section 6 of the Probation of Offenders Ordinance and again the case of Herry Jane Yusuph, in the light of the lengthy sentence now imposed on the defendant, I am persuaded that no further order is to be made in relation to the probation order and the breach of it.
Defendant, please stand up. By reason of the matters aforesaid, I sentence you an immediate imprisonment term of 14½ years. I make no further order in relation to the probation order imposed on you in the case of WKCC 700018/2018.