On 8 August 2020, the defendant was intercepted by police officers at Carnarvon Road, Tsim Sha Tsui, Kowloon. The police officers searched the defendant and found four plastic bags containing a total of 14.4 grammes of a crystalline solid containing 14.4 grammes of ‘Ice’.
Its street value was HK$8,568. That is the subject of Count 1.
The police officers also found a plastic bag containing 0.27 grammes of a solid containing 0.11 grammes of cocaine.
The street value of the cocaine was HK$927. That is the subject of Count 2.
I start with the sentence for Count 1. The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I therefore follow the six-step sentencing approach set out in Yusuph.
The first step is to identify the relevant guideline band or bracket applicable to the quantity of drug concerned. Following HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, for quantities of 10 grammes to 70 grammes of ‘Ice’, the sentencing band is 7 to 11 years’ imprisonment.
The second step is to assess the defendant’s role and culpability based upon the evidence. On the evidence there is nothing to suggest that the defendant had any role beyond the culpability of an ordinary courier. I therefore assess his culpability as with any other courier.
The third step of the sentencing exercise is to identify where in the relevant band the defendant comes. This would yield a starting point for the sentence. In respect of this defendant, trafficking in 14.4 grammes of ‘Ice’, a mathematically calculated place within the sentencing band would be 7 years and 3 months’ imprisonment after rounding down. I cannot see any basis for departing from the mathematically calculated place within the relevant band.
The fourth step requires me to consider whether there are any aggravating factors which might require me to enhance the starting point. The defendant had one previous conviction for robbery, two previous convictions for possession of Part 1 poisons, two previous convictions for possession of dangerous drugs and two previous convictions for possession of equipment fit or intended for smoking, injecting or inhaling dangerous drugs. None of the previous convictions concern trafficking in dangerous drugs.
Bearing in mind the Court of Appeal’s observations in HKSAR v Wan Wai Lun [2018] 1 HKLRD 1022 at paragraph 19, the defendant’s previous convictions do not, in my view, justify an enhancement of his sentence for trafficking. I cannot see any aggravating factors in the present case.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence after trial, bearing in mind that personal circumstances for this offence generally count for little. I have borne in mind the observations of the Court of Appeal in both HKSAR v Abdallah [2009] 2 HKLRD 437 at paragraph 32 and Yusuph at paragraph 44 where the Court of Appeal stressed the seriousness of drug trafficking and the problems that it brings to families and communities.
Accordingly, the defendant’s personal circumstances are rarely a mitigating factor. In light of the aforesaid principles, the defendant’s personal circumstances do not constitute mitigating factors for the purposes of the fifth step.
The main mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount off the starting point which brings the notional sentence to 4 years and 10 months’ imprisonment.
The defendant in this case is 37 years old. I have been informed that the defendant is current studying English in prison and I have read a letter that the defendant wrote to this court in English. In his letter, the defendant spoke of his son having been born in March 2021 whilst he was in custody and this has caused him to reflect upon the errors of his ways.
The defendant wrote that he is determined to start a new life, that he will not waste his time anymore, that he will set a good example to his son and that he will provide the best for him. Whilst these promises do not justify a further reduction in sentence, for the defendant’s own sake and for the sake of his son, I hope that the defendant can keep his promises in the future and stay away from drugs and from crime in general when he is released from prison.
As to the possession of cocaine in Count 2, the quantity involved in this case is relatively small and does not add anything to the defendant’s overall culpability. I consider the appropriate sentence for Count 2 to be 30 days’ imprisonment. Applying the one-third discount for the defendant’s guilty plea, the appropriate sentence would be 20 days’ imprisonment to be served concurrently with Count 1.
The defendant’s overall sentence is this. For Count 1, I impose a sentence of 4 years and 10 months’ imprisonment. For Count 2, I impose a sentence of 20 days’ imprisonment to be served concurrently with Count 1. Defendant, please stand up. I sentence you to a term of 4 years and 10 months’ imprisonment.