COURT: I do not propose to keep you in suspense. You are going to prison for 5 years and 4 months. When I have left court, Mr Lam will explain to you when you are likely to be released, bearing in mind the rules about remission of sentence and the length of time you have been in custody.
You originally faced two charges: keeping a divan and trafficking in the dangerous drugs found in the divan. The prosecution was content for the charge of keeping a divan to remain on the court file, and it follows that you have to be sentenced only for the offence of trafficking in dangerous drugs. However, the Court of Appeal has recently emphasised the importance of the particular role played by an offender when determining the appropriate sentence for someone convicted of trafficking in dangerous drugs. The fact that you were trafficking in drugs in the context of keeping a divan is a relevant consideration, even though, of course, you are not being sentenced for the offence of keeping a divan.
You said when you were arrested that this was only the second day of your employment as the keeper of this divan. I am sceptical about that. It would have been very bad luck for your arrest to have taken place so soon after you got this job. But leaving that aside, there is no basis on which the prosecution disputes what you say, and I therefore deal with you on the footing that this was employment you had only just begun and that your salary was a modest $900 a day. I note that you told the police following your arrest that you were a drug addict, and it may be that you took this employment to feed your habit.
You will have been told that the Court of Appeal has laid down guidelines for the appropriate sentence for people who traffic in drugs. The guidelines are based on the amount of drugs involved, although the court does not look at their weight as a whole. It focuses on the narcotic content of the drugs. The weight of the narcotic content of the drugs in your case was about 40 grammes of heroin and about 15 grammes of ice. I acknowledge that had you been arrested a few hours or a few days later, the quantities of the drugs you had in the divan may have been less. It was therefore a matter of chance that on this particular day and at this particular time you happened to have these quantities of drugs with you in the divan. But what you had with you in the divan at the time of your arrest is the only basis on which the court can sentence you.
The guidelines say that the appropriate range for someone who is convicted of trafficking in between 10 and 50 grammes of heroin is 5 to 8 years’ imprisonment, and the appropriate range for someone who is convicted of trafficking in between 10 and 70 grammes of ice is 7 to 11 years’ imprisonment. These are the appropriate ranges and sentences for someone who has been convicted after pleading not guilty. It would not be fair if I simply took the appropriate sentence for each of the drugs you were trafficking in and then aggregated them. The fairer and more realistic approach is to take the longest sentence which would have been passed for the drugs which you were trafficking in if you had been sentenced just for them, and then to take into account the fact that you were trafficking in another type of drug as well. In your case, though, the appropriate sentence for each of the two types of drugs, looking only at where their weight came in the appropriate range, would have been about 7 years’ imprisonment if you had to be sentenced just for each.
The guidelines for someone who is convicted of trafficking in heroin and ice were set for defendants who were involved in trafficking at the lowest level of culpability, namely, as a courier or a storekeeper. The Court of Appeal has recently identified the hierarchy of roles of those who traffic in dangerous drugs. You were selling these drugs direct to the end user, albeit on behalf of your employer, from a stock of drugs which were kept in the divan and which you looked after. On that basis, you come slightly above the courier or storekeeper in terms of culpability. Had I been sentencing you for trafficking in each of these drugs alone, I would have taken 7 years and 6 months’ imprisonment as my starting point. I bear in mind that the Court of Appeal has said that trafficking in a variety of drugs is an aggravating factor, but at the same time I must be careful not to sentence you twice over for the same thing.
In the light of the nature of your trafficking, the quantity and variety of the drugs you had with you in the divan, where they were in terms of weight in the appropriate ranges, and the fact that this is not the first time that you are having to go to prison for your involvement with drugs, I propose to take 8 years’ imprisonment as my starting point. In deciding upon that starting point, I have borne in mind that your only previous conviction for trafficking in dangerous drugs resulted in a relatively short sentence. I have also borne in mind what the Court of Appeal has said about the various ways of checking whether the starting point the court has in mind in cases such as these is broadly correct.
You are entitled, of course, to have your sentence reduced by one-third because of your plea of guilty on the return date when you were committed to the High Court for sentence. That means that the sentence which I pass on you for this offence of trafficking in dangerous drugs is 5 years and 4 months’ imprisonment.