COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug and admitted a set of Summary of Facts.
Facts of the Case
The facts giving rise to this case are as follows:
At around 8.35 pm on 24 July 2021, whilst a police officer was on patrol in a police car with his teammates at Tung Shing Lei Road, he saw a taxi bearing registration mark VW5794 getting driven away. Feeling suspicious, the officer intercepted the taxi and found the defendant, who was carrying a dark-coloured cross-body bag, sitting at the rear nearside passenger seat and behaving furtively.
The officer asked the defendant to alight from the taxi, which he did. At that juncture, the officer saw a black bag being left on the seat where the defendant sat at the time of the interception. The officer picked up the bag and the defendant attempted to flee. The officer and his teammates immediately subdued the defendant.
Inside the bag, there were found 10 plastic bags containing a total of 192.03 grammes of a solid containing 170.99 grammes of cocaine. The defendant was therefore arrested for the offence of trafficking in a dangerous drug. Under caution at the scene, he initially asserted that the drugs were for his own consumption. He now accepts that all the drugs found were for the purpose of unlawful trafficking.
The estimated street value of the drugs seized from the defendant at the time of the offence was around $220,000 if in powder form, or $260,000 if in crack form.
The Defendant’s Background
The defendant was born in China in 1988 and came to Hong Kong in 1990 when he was 2 years old. He is now 34 years old. He received education in Hong Kong up to Form 5. He is married and has a son. He and his wife have separated, but not divorced, and the son is now taken care of by the mother.
Before his arrest, the defendant used to work as a transportation worker.
He has four previous criminal convictions, involving seven separate offences - one of which was for the same offence of trafficking in a dangerous drug (in 2012) for which he was sentenced to 28 months for that offence. He has another more recent previous conviction for possession of dangerous drugs (in 2017) for which he was sentenced to Drug Addiction Treatment Centre.
In mitigation today, apart from adopting the written submission dated 12 December 2022, Mr Leung, on behalf of the defendant, produced to me two letters, one written by the defendant himself and the other written by Deacon, Mr Peter Wong, who has been providing religious guidance to the defendant whilst he has been in remand. I have read and duly considered all those that were said in the written submissions as well as the two letters that I have just mentioned.
Sentencing Principles and Tariffs
The law in relation to sentencing of drug traffickers was explained by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and it involves a six-step approach.
The first step requires the court to assess the gravity of the offence by looking at the type and quantity of the drug involved. There is only one type of dangerous drug involved in this case, namely, cocaine, in the amount of 170.99 grammes. The sentencing tariff that is applicable to trafficking in 50 grammes to 200 grammes of cocaine can be derived from the case of R v Lau Tak-ming & Others [1990] 2 HKLR 370, which is a tariff case for heroin which, as confirmed in HKSAR v Abdallah [2009] 2 HKLRD 437, is to be applied to cocaine as well. The starting point that is appropriate is one of between 8 to 12 years’ imprisonment.
The second step is to assess the role and culpability of the defendant. I have considered the facts of the case and the mitigation advanced by Mr Leung on behalf of the defendant, and I accept that the defendant was merely a courier responsible, as he admitted, for delivering the drugs from Kam Tin to a hotel in Yuen Long.
The third step is to identify where in the relevant band of the guidelines the defendant comes. Given that I accepted the role of the defendant is a mere courier, the relevant sentencing band of 8 to 12 years’ imprisonment is applicable in this case. The mathematically-calculated weight-based starting point is therefore one of 11 years and 2 months.
The fourth step is to consider whether there is any aggravating factor which warrants an enhancement of the starting point. Whilst a previous conviction for trafficking in a dangerous drug will sometimes justify an enhancement of the starting point for sentence, I have given due consideration to what has been said on behalf of the defendant by Mr Leung, as well as the fact that the last conviction for trafficking imposed on the defendant was more than 10 years ago (in 2012). I therefore take the view that the defendant deserves one more chance and I would not enhance the starting point of sentence. In this regard, I have paid attention to the two letters provided to the court, one written by the defendant, the other by Deacon Wong.
Fifthly, I am required to have due regard to all mitigating factors. As the Court of Appeal made it clear in Herry Jane Yusuph, in cases of trafficking in dangerous drugs, personal circumstances will count for little, unless they are exceptional. And there are no such exceptional circumstances present in this case. The only real and effective mitigating factor is the defendant’s timely and early plea of guilty at the committal stage, which demonstrates his remorse. I am therefore prepared to give the 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 a sentence of 7 years and 5 months.
The final stage of the sentencing process is to stand back and look at the sentence passed to make sure that it is fair and just. Viewing the matter in the round, I consider that the ultimate sentence of 7 years and 5 months is appropriate and is not out of proportion to the defendant’s overall criminality.
Therefore, I sentence the defendant to a sentence of 7 years and 5 months’ imprisonment.