COURT: The defendant pleaded guilty before a magistrate to one charge of trafficking in dangerous drugs and was committed before me for sentence. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs involved, personal background of the defendant and mitigation put forward on her behalf by learned defence counsel. I have also had regard to the sentencing approach as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph, CACC 93/2019, and HKSAR v Islam S M Majharul, CACC 67/2019.
The facts of the case may be summarised as follows. It took place on 26 April 2021. The defendant and a man were stopped by Customs officers when they were walking out from a building. Upon initial search, nothing illegal was found on them. They were taken to a flat in the said building of which the man said he was the tenant. With the keys found on the man, entry was gained into the flat. There, inside the toilet, a thorough search was conducted on the defendant.
The dangerous drugs as stated in the charge were found inside her bra. The drugs were put inside zip-lock bags, then wrapped with tissue paper. The dangerous drugs were 10.29 grammes of a crystalline solid containing 10.18 grammes of methamphetamine hydrochloride, 7.99 grammes of a solid containing 6.61 grammes of ketamine and 0.2 grammes of a solid containing 0.18 grammes of cocaine.
Upon arrest, the defendant said under caution that the items were given to her by an unknown man and had received a reward. On a zip-lock bag containing ‘Ice’, a Vietnamese word meaning ‘Ice’ was written. In her mobile phone, three photographs showing zip-lock bags containing white substances suspected to be dangerous drugs were found.
I was told that the defendant is a Vietnamese who can speak Putonghua. She is 26 years of age and is a Form 8 holder. She was, in April 2023, sentenced to about 15 months’ imprisonment for the offence of unlawful remaining. Then, her counsel for the defence, Mr Caesar Lo, urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity and stressed that she is truly remorseful. He also said that as the defendant had no legitimate source of income, she had been exploited to take part in the offence.
In the circumstances of the present case, I see no reason to depart from the tariff for each type of the drugs. I consider the sentence on the basis that the role of the defendant was one of a courier, low in the hierarchy. According to HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, for a case of trafficking in ‘Ice’, if the narcotic content is 10 to 70 grammes, an imprisonment term of 7 to 11 years should be considered. For trafficking in ketamine, according to SJ v Hii Siew Cheng [2009] 1 HKLRD 1, if the narcotic content is 1 to 10 grammes, an imprisonment term of 2 to 4 years’ imprisonment should be considered. For trafficking in cocaine, if the narcotic content is less than 10 grammes, according to R v Lau Tak Ming [1990] 2 HKLR 370, an imprisonment term of 2 to 5 years should be considered.
Multiple drugs were involved in this case. In consideration, I follow the approach as stated by the Court of Appeal in HKSAR v Islam S M Majharul [2020] 3 HKLRD 146. ‘Ice’ was obviously the most prominent drug both in terms of its potency and quantity. The quantity of cocaine was minimal. There were 10.18 grammes of ‘Ice’. It by itself attracts a starting point of about 7 years. I adopt the combined approach and check whether the starting point to be adopted is fair and appropriate by testing it against the absurdity test, the conversion test and the ratio test.
In consideration, I bear in mind that trafficking in different types of drugs presented two possible aggravating features of a wider market and the effect on users of a combination of dangerous drugs. The impact of these aggravating features is substantial in the light of the variety of drugs involved. In the circumstances of the present case, I am of the view that the sentence should be enhanced by about 6 months for this factor.
In the circumstances, taking into account that three drugs were involved and the quantity of the drugs, for the trafficking offence, a starting point of 7½ years is warranted.
There is another aggravating factor which I have to take into account. The defendant is a Form 8 holder. For this aggravating factor, I am of the view that, in the circumstances of the case, the sentence should be enhanced by 6 months.
Having considered the whole of the relevant circumstances, bearing in mind the risk of over-enhancement, I adopt 8 years as the notional sentence after trial.
The defendant pleaded guilty before a magistrate and for this she is entitled to a one-third discount. Having considered the whole circumstances, including what Mr Lo mitigated on the defendant’s behalf, I am of the view that one-third is the extent of discount the defendant is entitled to.
For these reasons, the sentence to be imposed on the defendant on the trafficking charge should be 5 years and 4 months.
The defendant is now serving an imprisonment term of about 15 months for the offence of unlawful remaining. Mr Lo urged me to order the sentence of the present case to run concurrently with that sentence.
Obviously, the defendant committed the present offence while she was remaining unlawfully. It is confirmed that she committed the present offence after her unlawfully stay had been discovered and she was charged for the unlawful remaining offence after she committed the present offence.
The two offences are of completely different nature. I do not agree that the two sentences should run concurrently, but I will take into account totality. In my judgment, 10 months of the present offence should run consecutively to the sentence the defendant is serving. Mr Lo informed the court that the earliest the date would be discharged for that offence is 12 January 2024. To avoid misunderstanding and possible injustice to the defendant and with a view to give effect to the total sentence I am minded to give the defendant, I will adjust the term of the present sentence and order it to be wholly consecutive to the sentence the defendant is now serving.
Defendant, for the reasons I have said, I sentence you to an immediate imprisonment term of 4 years and 11 months for the present offence. I further order that this sentence is to run wholly consecutively to the sentence you are now serving.
