COURT: The defendant pleaded guilty in the Eastern Magistrates’ Court on 19 September 2022 to the charge of trafficking in a dangerous drug and she was committed to the Court of First Instance for sentence.
The charge alleges that on 22 May 2021, outside No. 74 Pei Ho Street, Sham Shui Po, Kowloon, the defendant unlawfully trafficked in 87.88 grammes of a crystalline solid containing 86.41 grammes of methamphetamine hydrochloride.
She comes before me on 17 March 2023 for sentence, having confirmed her plea and her admission of the Summary of Facts in support.
The Facts
The Summary of Facts reveal that at around 9:34 pm on 22 May 2021, the defendant was intercepted by police outside No. 74 Pei Ho Street, Sham Shui Po. The defendant could not present her identity card and acted furtively. She hid a brown paper bag that she was carrying behind her handbag.
Upon search, police seized the following in the brown paper bag and found another brown paper bag containing two plastic bags containing six plastic bags containing a total of 82.9 grammes of a crystalline solid containing 81.5 grammes of methamphetamine hydrochloride (commonly known as ‘Ice’); and three plastic bags containing a total of 4.98 grammes of a crystalline solid containing 4.91 grammes of ‘Ice’.
The defendant was found to have $10,440.50 in cash and a mobile phone.
Upon arrest and caution, the defendant admitted she was delivering the ‘Ice’ for others for HK$300, which was post-recorded in police station and signed voluntarily by the defendant.
In a subsequently conducted video recorded interview, the defendant claimed ownership of her mobile phone and the money.
The house search did not return anything implicating.
The estimated street value of the ‘Ice’ seized is about $47,895.
The defendant now admits and accepts that at the material time, she was in possession of ‘Ice’ for the purpose of unlawfully trafficking in them.
Mitigation
The defendant is now 22 years of age. She was educated up to Form 3. She is single, and used to live with her parents and two siblings in a private accommodation in Yuen Long.
The defendant’s counsel, Ms Cheng, submits on her behalf that she was remorseful. Ms Cheng informs the court that the defendant was brought up in a foster family and felt that she was deserted by her parents during the formative years. She did not have a close relationship with her parents although she later returned to live with them.
The defendant quitted school after completing Form 3, and worked in her stepfather’s logistic company as a delivery worker with a monthly income of 14,000, from which she contributed 6,000 for family expense.
Ms Cheng also informs me that about two months prior to the offence, the defendant had a heated argument with her stepfather and left home. She was unable to find a job and did not want to ask her boyfriend for money. A friend, knowing her difficulties, introduced her to undertake delivery work for quick money. She agreed to deliver drugs for a reward and was arrested when she waited for instructions for delivery.
Ms Cheng submitted that the defendant fully cooperated with the police and made immediate verbal admission upon arrest.
It was said that the defendant offered to provide information to police at an early stage and before her committal.
The court was provided with a letter handwritten by the defendant herself. The defendant told me that due to lack of parental love and care, she lacked sense of security and belonging. She explained she did not have close relationship with her parents and chose to suppress her problems. She became associated with bad influence and was induced to take the shortcut of trafficking in dangerous drugs to earn money.
She expressed regret, saying that she made a reckless decision without thinking of consequences. She promised that she will make good use of the time to educate herself, hoping to take over her family’s logistic business and reduce her parent’s work pressure. She asked for a lenient sentence.
In this case, I called for a background report to help me to better understand how the defendant became involved in drug trafficking. The report reveals that the defendant comes from an unhappy family background. The defendant was brought up in a nuclear family with inadequate parental care, guidance and parent-child communication. She was deprived of maternal love that she longed for. She became rebellious, resulting in her early drop out from school. The defendant is immature and reckless, lacking direction in life. The defendant expressed remorse for her misdeeds and promised to reform herself. Her parents were alarmed by her wrongdoings and expressed their readiness to help her to rehabilitate herself.
Sentencing Principles and Tariffs
It is well-established that trafficking of dangerous drugs is a very serious offence. In HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, the leading case on the approach to sentencing in cases of drug trafficking, Macrae VP reaffirmed that for this offence, personal circumstances were of far less importance than the sentencing principles of denunciation, deterrence and punishment. In sentencing, I shall follow the six-step approach as set out in that case.
The first step is to assess the gravity of the offence. Ms Cheng referred to the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 that the sentencing band for 86.41 grammes of ‘Ice’ is 11 to 15 years’ imprisonment, for quantities of 70 grammes and 300 grammes of ‘Ice’.
The second step is to assess the defendant’s role and culpability based upon the evidence. Ms Cheng submitted that the role of the defendant was one of a courier. I accept that the defendant was engaged in the job of carrying dangerous drugs for others for a monetary reward and I therefore assess her culpability as trafficker at the same level as a courier.
The third step is to identify where in the relevant band the defendant comes, bearing in mind it might be necessary to go outside that band, whether above or below, given the circumstances of the commission of the offence and the role of the defendant.
The sentencing guidelines for trafficking in dangerous drugs are based upon the role of a defendant as a courier or storekeeper. I therefore accept that the relevant Tam Yi Chun sentencing band of 11 to 15 years’ imprisonment for the quantity of ‘Ice’ I have just mentioned should be applied in this case where the defendant’s role is one of a courier.
According to that tariff, the mathematically calculated weight-based starting point is one of 11 years and 3 months’ imprisonment.
Taking into account the role and culpability of the defendant, I do not find there to be any justification for departing from that starting point.
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 not been convicted of any drug-related offence before and there was only one type of drug that she had dealt with in this case, namely ‘Ice’. There is no warrant for any enhancement for sentence.
Fifth, I am required to have due regard to all mitigating factors. As the Court of Appeal made clear in Herry Jane Yusuph, in cases of trafficking in dangerous drugs, personal circumstances will count for very little, unless they are exceptional.
Ms Cheng very sensibly accepted there are no exceptional mitigating circumstances concerning the defendant in this case. The defendant made a timely plea of guilty at the committal stage. She will receive a full one-third discount. I reduce the overall starting point to a term of 7 years and 6 months.
I have carefully considered the reasons for the defendant’s offending as explained by Ms Cheng on behalf of the defendant.
I have further been provided with a letter written by Father Wotherspoon dated 6 March 2023 about the assistance given by the defendant in support of his anti-drug campaign. He said that the defendant helped by writing several simple but strong letters which they had been using and will continue to use. Her letters described the sad conditions of her family background, how she left home and was befriended by people involved in drug trafficking, and the sad effect her detention have had on her life. It has been made clear by a number of Court of Appeal decisions, including the recent one in Secretary for Justice v Pastana Carvalho Andreza Narely [2022] 3 HKLRD 727 at paragraph 35, that a discount of up to 3 months is neither automatic, nor is it an entitlement. 3 months represent the limit of what might be given for this factor and is to be regarded as exceptional.
Having read the letter, I will give the defendant 2 months’ discount for her involvement in Father Wotherspoon’s campaign.
I was informed that upon entering her guilty plea, the defendant’s instructing solicitor wrote on 19 September 2022 and 29 November 2022, inviting the police to obtain a non-prejudicial statement from her as soon as possible, as the information to be provided is time sensitive. It was said that the police only visited her on 3 February 2023, by which time; the information became outdated as the target person had already changed the means of contact. Ms Cheng urged on me to consider that the defendant has tried her best to provide assistance to the authorities but failed for reasons beyond her control. Consequently, I adjourned the case to ask for a report from a law enforcement agency to enable me to make an assessment of the provision of information or assistance.
Through the helpful assistance of Mr Chan for the prosecution, the court is provided with a signed report from the investigating officer and a certification by a senior officer, together with a copy of the non-prejudicial statement, which set out all relevant information on this issue to enable me, as a sentencing judge, to properly assess the defendant’s claim and determine whether any discount should be given. The key question is whether the alleged information or assistance said to have been provided by the defendant was “of practical use” or not.
After reviewing the information provided by the defendant in the non-prejudicial statement and the further investigation conducted by the police, the prosecution concluded that “the information provided by the defendant in her NPS taken on 2023-02-03 was not of practical use to the law enforcement” and it does not assist their detection and prevention of crime. It is thus not “of practical use” in the sense described by the Court of Appeal in HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516, or “of any actual or potential assistance” as described by the court in HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88 (per Macrae VP at paragraph 83).
Having considered the matter, I find no reason to question the prosecution or the law enforcement agencies’ conclusion. The information provided by the defendant in the present case was not of a quality that could be gainfully utilised by the authorities in the prevention, detection and prosecution of crime. The evaluation of the police that the information provided by the defendant to be “of no practical use” is soundly based and does not merit a reduction from her sentence.
In the circumstances, no further discount will be given to the defendant on account of her alleged assistance to the authorities on the above principles.
The sixth and final step is to stand back and look at the overall sentence in order to ensure it is a fair, just and balanced sentence in all circumstances of the offence and the offender.
Having considered the facts of the offence and the defendant’s background, I am of the view that the ultimate sentence of 7 years and 4 months’ imprisonment is appropriate and is not out of proportion to the defendant’s overall criminality.
The final sentence I would impose on the defendant is one of 7 years and 4 months’ imprisonment.