It is alleged that he, on 16 February 2021, outside Ground Floor, No. 215 Apliu Street, Sham Shui Po, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 249 grammes of a crystalline solid containing 247 grammes of methamphetamine hydrochloride, more commonly known as ‘Ice’.
The defendant pleaded guilty to the said charge before the magistrate at the committal stage and was committed to the Court of First Instance for sentence on 26 September 2022.
He comes before me today for sentence. He confirms his plea and admission to the Summary of Facts produced by the prosecution.
Facts of the case
The facts giving rise to this case as agreed by the defendant are straightforward. At around 6.15 pm on 16 February 2021, the defendant was spotted by police officers to be acting furtively. He was intercepted outside Ground Floor of No. 215 Apliu Street, Sham Shui Po, Kowloon. The police officers conducted a search on him and found inside the inner pocket of his jacket a bag containing a transparent resealable plastic bag containing 249 grammes of a crystalline solid containing 247 grammes of ‘Ice’. Upon arrest, the defendant claimed to have purchased the drugs for his own consumption. In that regard, as stated in the Summary of Facts, the defendant now accepts that he possessed all of the seized dangerous drugs for the purpose of unlawful trafficking.
The estimated street value of the ‘Ice’ seized at the time of the offence was about HK$146,000.
The Defendant’s Background
The defendant is now 38 years old. He was born in Hong Kong but he has no fixed abode here. He received education in China up to Primary 5 level. He is divorced and has no children. At the material time of the offence, the defendant was unemployed and lived on the CSSA allowance of around $4,850 per month.
Prior to his arrest, the defendant had worked as a transportation worker and resided at Wah Koon House, Wah Sum Estate, Fanling.
The defendant has a string of criminal conviction records. He was convicted of a total of 21 counts of offences over a time span of 22 years from 1998 to 2020. These included three counts of trafficking in dangerous drugs and eight counts of possession of dangerous drugs. Insofar as his convictions for trafficking in dangerous drugs are concerned, the first conviction took place in 2001 when he was 16 years old and a DATC order was imposed on him. In June 2010, he was convicted of two charges of trafficking in dangerous drugs, for which he was sentenced to 4 years and 8 months’ imprisonment. Regarding his convictions for possession of dangerous drugs, these were scattered in the years between 2003 and 2020 and he was subjected to two DATC orders and various terms of imprisonment for those possession of dangerous drugs convictions.
The Sentencing Principles and Tariffs
The courts of Hong Kong have consistently adopted a serious approach in handling cases of drug trafficking. This is reflected in the nature of the sentences and the level of those sentences traditionally imposed by the courts. The policy underlying the said approach is to impose a deterrent sentence. To this end, the courts have provided the sentencing guidelines in the form of tariffs for various forms of dangerous drugs, including ‘Ice’, the subject drug in the present case.
The approach in relation to sentencing of drug traffickers was explained by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, in which the Court of Appeal laid down the six-step approach to sentencing of offenders convicted of trafficking in a dangerous drug.
As the first step, the court assesses the gravity of the offence by looking at the type and quantity of the drug concerned. There is one type of dangerous drugs involved in this case, namely ‘Ice’. The sentencing tariff that is applicable to trafficking in 70 grammes to 300 grammes of ‘Ice’ has been set out in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. According to the tariff, the starting point for sentence after trial is one of between 11 years and 15 years’ imprisonment.
The second step is to assess the role and culpability of the defendant. It is submitted by counsel for the defendant that the role of the defendant in this case is one of a courier and I accept that to be the case as supported by the facts admitted by the defendant.
The third step is to identify where in the relevant band of the guidelines the defendant comes. As the sentencing guidelines for trafficking in dangerous drugs are based upon the role of a defendant as a courier or storekeeper, I accept that the relevant sentencing band of 11 to 15 years’ imprisonment are for the quantity of ‘Ice’ involved is applicable in this case, given the role of the defendant as admitted by him is one of a courier. And the mathematically calculated weight-based starting point accordingly is one of 14 years’ imprisonment.
Taking into account the role and culpability of the defendant, there is no justification for departing from that mathematically calculated starting point within the relevant band.
The fourth step is to consider whether there is any aggravating factor which warrants an enhancement of the starting point. It has been established by the authorities, including R v Lau Tak Ming and others [1990] 2 HKLR 370; HKSAR v Abdallah [2009] 2 HKLRD 437 and HKSAR v Chau Hon Kwong [2011] 1 HKLRD 630, that a previous conviction for trafficking in a dangerous drug will justify an enhancement of the starting point for sentence.
That said, I have duly considered the submission made by counsel for the defendant, that the defendant’s last conviction for trafficking in dangerous drugs was some 12 years ago in 2010 and the first conviction for trafficking in dangerous drugs was when he was young, at the age of 16. I therefore accept and take the view that the defendant deserves one more chance and I will not exercise my discretion to enhance the starting point for his sentence.
Fifthly, I am required to have due consideration of all mitigating factors. In this case, there are no exceptional mitigation factors in terms of his personal circumstances to support a discount on sentence apart from the defendant’s timely and early plea of guilty at the committal stage. I am prepared to give a full one-third discount to the defendant in accordance with the sentencing approach in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, and reduce the overall starting point to one of 9 years and 4 months.
The sixth and final stage of the sentencing process is to stand back and look at the overall sentence passed in order to ensure that it is fair and just. I have duly considered the circumstances of the offence and take the view that the ultimate sentence of 9 years and 4 months’ imprisonment is appropriate and not out of proportion to the defendant’s overall criminality.
Hence, the final sentence that I will impose on the defendant is one of 9 years and 4 months’ imprisonment. This is the sentence that I am to impose.