COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug involving 130.98 grammes of a crystalline solid containing 130.98 grammes of methamphetamine hydrochloride, commonly referred to as ‘Ice’.
At 8.20 pm on 6 January 2022, police officers saw a private car with its engine on, stopping at the entrance of a car park at Mody Road, Tsim Sha Tsui, Kowloon where double yellow lines were marked. The police therefore approached the car and saw the defendant sitting in the driver’s seat. The defendant was seen placing a plastic bag in his hand into the compartment next to the door of the driver’s seat. The police asked the defendant to stop and alight from the car for a search.
The police officers searched the car and found 14 plastic bags containing drugs as stated in the charge. The defendant accepted that he was trafficking in those drugs.
The street value of the ‘Ice’ seized was $76,623.
The defendant is now 40 years old. He was educated up to secondary school level. He once worked as a transport driver and as a chef.
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I therefore follow the six-step sentencing approach set out in Yusuph.
The first step is to identify the relevant guideline band or bracket applicable to the quantity of drug concerned. Following HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, for quantities of 70 grammes to 300 grammes of ‘Ice’, the sentencing band is 11 to 15 years’ imprisonment.
The second step is to assess the defendant’s role and culpability based upon the evidence. On the evidence, there is nothing to suggest that the defendant had any role beyond the culpability of an ordinary courier. I therefore assess his culpability as with any other courier.
The third step of the sentencing exercise is to identify where in the relevant band the defendant comes. This would yield a starting point for the sentence. In respect of this defendant, trafficking in 130.98 grammes of ‘Ice’, the proper starting point is 12 years’ imprisonment after rounding down.
The fourth step requires me to consider whether there are any aggravating factors which might require me to enhance the starting point. The defendant has seven previous convictions but none of them relate to dangerous drugs. I do not consider the defendant’s history of unrelated previous convictions as an aggravating factor.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence after trial, bearing in mind that personal circumstances for this offence generally count for little. I have borne in mind the observations of the Court of Appeal in both HKSAR v Abdallah [2009] 2 HKLRD 437 at paragraph 32 and Yusuph at paragraph 44 where the Court of Appeal stressed the seriousness of drug trafficking and the problems that it brings to families and communities. Accordingly, the defendant’s personal circumstances do not constitute mitigating factors for the purposes of the fifth step.
The main mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount off the starting point which brings the notional sentence to 8 years’ imprisonment.
In the circumstances of the present case, no other additional considerations are relevant insofar as the sixth step is concerned.
Defendant, please stand up. I sentence you to a term of 8 years’ imprisonment.