COURT: The defendant was found guilty of two counts of trafficking in a dangerous drug. 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 the street when he was coming out from a building. He was stopped by customs officers. Upon search, the dangerous drug as stated in Count 1 was found in the pocket of the upper garment he was wearing. The defendant was then taken to a room in the building from which he came out. In the room, the dangerous drug as stated in Count 2 was found.
Under caution, the defendant admitted that he was to bring the substance to customers for a promised reward. I was told that the defendant was 21 years of age at the time of offence. He is single, living with his parents and elder brother in a public housing flat. He had received education up to Form 3 and had worked in different fields. He was unemployed at the time of the offence.
In mitigation, learned counsel for the defence, Mr Bernard Yuen asked the court to take into account that the defendant had never committed any offence before, he is not a drug addict, has no connection with the triad and his relatively young age at the time of the offence. He also stressed that the parents are still supportive to the defendant and have been present during the trial.
Mr Yuen also asked the court to take into account that the prosecution case was almost wholly admitted. In this regard, I note that despite the only issue in the trial was that of knowledge, the defence did challenge the admissibility of the alleged confessional statements of the defendant and a voir dire was required.
The dangerous drug concerned was 125 grammes of a crystalline solid containing 124 grammes of ‘Ice’ for Count 1 and 1,866 grammes of a crystalline solid containing 1,840 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 is between 70 and 300 grammes, a sentence of 11 to 15 years’ imprisonment should be considered. The court also held that if a narcotic content exceeds 600 grammes, the tariff in HKSAR v Abdallah [2009] 2 HKLRD 437 is applicable.
It was held in Abdallah that if the narcotic content is between 1,200 grammes and 4,000 grammes, an imprisonment term of 23 to 26 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 the trafficking hierarchy.
In all the circumstances, taking into account my assessment that the defendant occupied the lowest rank of the trafficking hierarchy, I will adopt the following starting points: for Count 1, 11 years and 11 months; Count 2, 23 years and 8 months.
The defendant did not plead guilty. Having considered mitigation submission, I do not consider there exist sufficient reasons to give the defendant any discount.
For these reasons, I sentence you to the following imprisonment terms: Count 1, 11 years and 11 months; Count 2, 23 years and 8 months.
In the circumstances of the present case, having regard to the sentencing approach as stated by the Court of Appeal in HKSAR v Herry Jane Yusuph, CACC 93/2019, the total sentence to be imposed should be decided having regard to the sum quantity of all the dangerous drug involved. The total narcotic content was 1,964 grammes of ‘Ice’ which attracts a sentence of 23 years and 9 months.
Having regard to the above and the totality principle, I order 11 years and 10 months of the sentence of Count 2 to run consecutively to the sentence imposed on Count 1.
You are to serve a total sentence of 23 years and 9 months for the two counts.