COURT: The defendant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.
It is alleged that she, on 18 October 2021, at Reclamation Street/Soy Street Sitting-out Area (“the sitting-out area”) in Mong Kok, Kowloon, unlawfully trafficked in a dangerous drug, namely 19.3 grammes of a crystalline solid containing 18.7 grammes of methamphetamine hydrochloride, more commonly known as ‘Ice’.
The defendant pleaded guilty to the said charge before the magistrate at the committal proceedings and was committed on 26 September 2022 to the Court of First Instance for sentence.
Hence, she comes before me today for sentence. She confirms her plea of guilty and admission to the Summary of Facts that had been read out in court today.
The facts giving rise to this case are as follows:
At around 3:34 am on 18 October 2021, a police officer on patrol saw the defendant sitting on a bench near the entrance of the sitting-out area and looking around nervously. The police officer therefore intercepted the defendant.
Upon body search, there was found in the defendant’s front left trouser pocket one plastic bag containing 19.3 grammes of a crystalline solid containing 18.7 grammes of ‘Ice’.
At the time when the defendant was arrested, she admitted under caution that the drugs were for sale to a friend.
However, in a subsequent video-recorded interview conducted under caution on the same day, the defendant said that she bought the drugs at a price of around $600 to $700 for her own consumption, but these drugs were not for sale. She also claimed that she had a habit of consuming ‘Ice’ for three to four years and used to consume $300 to $400 worth of ‘Ice’ each week.
The estimated street value of the ‘Ice’ seized from the defendant at the time of the offence was about $14,000.
By her admission to the Summary of Facts which has been read out, the defendant admits and accepts that at all material times she knowingly possessed the lot of dangerous drugs for the purpose of unlawful trafficking.
Defendant’s Background
The defendant is now 57 years old. She received education up to Form 3 level. She is divorced and lived with her cohabitant. Before the defendant was arrested, she worked as a part-time cleaner earning, as she claimed, around $14,000 a month. She suffers from depression and has a serious eye problem involving the detachment of the retina of her left eye.
She has three criminal conviction records, involving four offences. Her first conviction record dates back to 1984. It was one for fighting in a public place for which she was fined $400. In 1994, she was convicted of possession of dangerous drugs and was sentenced to Drug Addiction Treatment Centre for that offence. And in 2016, she was again convicted of possession of dangerous drugs as well as a charge for possession of equipment fit and intended for taking dangerous drugs. For these two offences, she was again sentenced to Drug Addiction Treatment Centre.
Mitigation
In mitigation, Mr Pun, on behalf of the defendant, invites me to consider the circumstances under which the defendant committed the offence. It is submitted that the defendant was asked by her friend to pick up the drugs purchased from a seller whereas she was told that her friend would come to collect the drugs later. The defendant followed her friend’s instruction because she was told and promised that some of the drugs would be given to her for her own consumption.
In support of the defendant’s drug addiction condition, Mr Pun produced two urine test reports of the defendant, under which the defendant on two dates after her arrest was tested positive for amphetamine, which seems to suggest that she is a drug addict of ‘Ice’.
Mr Pun also produced two mitigation letters, written by the defendant herself and a pastor, Madam Poon, respectively. It is said in these letters that the defendant is extremely remorseful for committing the present offence, and is determined to turn a new leaf and will use her best endeavours to contribute to the community after her release from gaol, which would be an inevitably lengthy sentence.
Sentencing Principles and Tariff
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 levels of those sentences traditionally imposed by the courts. The maximum sentence for trafficking in dangerous drugs is life imprisonment. The policy underlying the approach is to impose a deterrent sentence. To this end, the courts have provided the sentencing guidelines in the forms of tariffs for various forms of dangerous drugs, including ‘Ice’, the subject drug in this case.
The approach in relation to the sentencing drug traffickers was explained in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, in which the Court of Appeal laid down a six-step approach to the 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, in this case, one type of dangerous drug, namely ‘Ice’. The sentencing tariff applicable to trafficking in 10 grammes to 70 grammes of ‘Ice’ is set out in the case of Tam Yi Chun [2014] 3 HKLRD 691. According to that tariff, the starting point for sentence after trial is one of between 7 years and 11 years’ imprisonment.
The second step is to assess the role and culpability of the defendant. It is submitted by Mr Pun that the defendant’s role in this case is one of a mere courier, somebody instructed to go and collect the drugs, and I accept that to be the case, having considered Mr Pun’s explanation of the background to the offence as well as the facts as admitted by the defendant.
The third step is to identify where in the relevant band of the guidelines the defendant comes. As the sentencing guideline for trafficking in dangerous drugs are based upon the role of the defendant as a courier or storekeeper, I accept that the relevant sentencing band of 7 to 11 years’ imprisonment is applicable in this case given I accepted the defendant’s role is one of a mere courier. In accordance with the guideline, the mathematically calculated weight-based starting point is one of 7 years and 7 months’ imprisonment.
The fourth step is to consider whether there is any aggravating factor which warrants an enhancement of the starting point for sentence. For this case, I accept that there is no aggravating feature.
Fifthly, I am required to have due consideration to all mitigating factors. As the defendant made a timely and early plea of guilty, I am prepared to give the full one-third discount to her in accordance with the well-established sentencing approach in the case of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. This will reduce the overall starting point to one of 5 years’ imprisonment.
I have also taken into account the submissions made on behalf of the defendant by Mr Pun that a small part of the drugs seized would possibly be given to the defendant as a reward for her assistance to that friend of hers for her own self-consumption. That said, as held in a number of cases, the applicable level of discount as recommended by cases such as HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and HRSAR v Chow Chun Sang [2012] 2 HKLRD 1121 only applies where a prominent or very substantial part of the drugs trafficked was for self-consumption.
However, if the defendant’s case was that only a part of the drugs was for her own consumption as opposed to a substantial part, the court could still exercise its discretion in deciding whether any reduction in sentence should be given and the extent of such reduction (see paragraphs 58 to 69 of HKSAR v Kong Tat Lung [2018] 5 HKLRD 635).
In the circumstances of this case, taking into account what has been submitted by Mr Pun on the defendant’s behalf, I accept that a small part of the drugs seized may be provided and given to the defendant for her own consumption. In that regard, I have considered the urine test reports, what the defendant said under caution, the previous criminal history of the defendant, especially the previous convictions of possession of dangerous drugs for which she was sentenced to Drug Addition Treatment Centre. As such, I am prepared to exercise my discretion and allow a further reduction in sentence of 4 months. The sentence is hence reduced to 4 years and 8 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. Having considered the circumstances of the offence, the defendant’s background, the mitigating factors as submitted by Mr Pun on behalf of the defendant, I take the view that the ultimate sentence of 4 years and 8 months’ imprisonment is appropriate and is not out of proportion to the defendant’s overall criminality.
Hence, the final sentence that I will impose on the defendant is one of 4 years and 8 months’ imprisonment.
