COURT: The defendant pleaded guilty to one charge of trafficking in a dangerous drug, namely 13.3 grammes in narcotic content of methamphetamine hydrochloride, commonly known as ‘Ice’, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
The facts that he admitted can be summarised as follows. At 1:25 am on 21 October 2021, in Nanking Street, Yau Ma Tei, the defendant turned around when he saw police officers, so the officers gave chase and had him subdued. The ‘Ice’ in question was found in a transparent resealable plastic bag inside the black plastic bag that the defendant was carrying.
Under caution, the defendant claimed that he was with his friends, Susan and Vienna, when the police officers appeared. The ‘Ice’ was given to him by Vienna.
The estimated market retail value of the ‘Ice’ was $10,132.
He now admits and accepts that he knew the said transparent resealable plastic bag contained dangerous drug and that he was unlawfully trafficking in it.
Based on the antecedent statement of the defendant prepared by the officer-in-charge dated 13 February 2022 and the submissions by his counsel Mr Donald, the background information of the defendant are these. The defendant was born in Kenya, he was 43 years old at the time of offence. He will turn 44 next month. He is educated up to university level in Kenya. He arrived in Hong Kong in 2005. He married a Hong Kong resident in 2010 but they separated in 2015. He is a father of three children, one aged 13 years from his previous marriage and two, aged nine and two years respectively from his current relationship. He has applied for dependency visa. The application is currently under review by the authority. He was unemployed at the time of the arrest. He is a Form 8 recognizance holder.
Mr Donald submitted that the defendant has been a drug addict using ‘Ice’ since 2014 on and off through to the time of arrest. But the antecedent statement which the defendant admitted stated that he had been taking ‘Ice’ for three years only as at 2022.
The defendant has one spent conviction of common assault in 2011, three convictions for possession of a dangerous drug in 2014, 2016 and February 2021 respectively. The dangerous drug involved were mainly ‘Ice’. The offence in 2016 was committed when he was serving the suspended sentence for the offence in 2014.
The present offence was committed in October 2021, only a few months after he had served the sentence for the offence committed in 2021. He was the subject of a removal order issued in October 2012 which according to Mr Donald was being put on hold.
In mitigation, Mr Donald initially submitted to the effect that the defendant was going to resell half of the ‘Ice’ in question together with Susan and Vienna while the other half would be consumed by the three of them.
Upon taking further instructions, this line of mitigation was withdrawn in particular the defendant is no longer relying on the point of self-consumption. Instead, the defendant admits the prosecution case which is that he was trafficking in all the ‘Ice’ in the charge as a courier.
Mr Donald acknowledged that the defendant’s status as a Form 8 recognizance holder is an aggravating factor. He suggested an enhancement of sentence by 6 months or less. He submitted that the starting point should be 7 years which should be adjusted for the defendant’s plea of guilty at the first opportunity and for his remorse.
I now consider the six steps as stipulated in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
The amount of ‘Ice’ in this case is 13.3 grammes in narcotic contents. According to HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, trafficking in 10 to 70 grammes of ‘Ice’ will attract a starting point for sentence of 7 to 11 years of imprisonment. This band applies to defendants who are couriers or storekeepers.
The defendant admits that he was a courier.
The amount of ‘Ice’ in this case is 13.3 grammes which should attract a starting point for sentence of 86.64 months of imprisonment.
It is an aggravating factor for an accused to commit another offence shortly after his release from imprisonment. Soon after serving out the sentence for his last conviction of possession of a dangerous drug, the defendant committed the present offence which was even more serious and in fact much more serious in nature. The starting point should therefore be enhanced to 90 months’ imprisonment.
The defendant is a Form 8 recognizance holder. In another trafficking in dangerous drug case, HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, where the starting point was one of 8 years 2 months, the Court of Appeal approved an enhancement of 1 year’s imprisonment for the factor that the applicant was a Form 8 recognizance holder.
In HKSAR v Ali Saif [2018] 6 HKC 19, the Court of Appeal stipulated that the enhancement for this factor should not be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court.
In this present case, in order to mark the significance of the defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of the city, and to firmly discourage Form 8 recognizance holders from becoming involved in serious crimes whilst their applications are being processed, I judge that the starting point should be enhanced by 9 months’ imprisonment.
The starting point for sentence in the present case is therefore one of 99 months’ imprisonment.
The defendant pleaded guilty at the earliest opportunity, he is entitled to a full one-third discount. There is no other mitigating factor in the case.
Having considered all the circumstances of the offence and the defendant, the fair, just and balanced sentence is one of 66 months or 5 years 6 months’ imprisonment and the defendant is sentenced accordingly.