On 29 August 2014 the defendant pleaded guilty in the Eastern Magistrates’ Courts to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was committed to this court for sentence.
This morning, the defendant confirmed his plea before me and accepted the summary of facts.
Briefly, in the afternoon of 25 February 2014, the defendant was intercepted for customs clearance after his arrival at the Lo Wu Control Point. Upon search, the officers found concealed inside a speaker carried by the defendant the drug particularised in the charge; that is, a total of 1,003.2 grammes of a crystalline solid containing 976.75 grammes of methamphetamine hydrochloride, commonly known as “ice”.
Under caution, the defendant stated that he was asked by another person to take them back to Hong Kong for a reward of $1,000. When asked to participate in a controlled delivery, the defendant agreed, but the result was futile.
The estimated retail value of the drug was about HK$448,400.
Mitigation
The defendant is aged 33 and is single. He had received primary education. After leaving school, the defendant had worked as a kitchen worker on a casual basis, earning about HK$400 to 500 per day. However, the defendant was unemployed at the time of his arrest.
The defendant had been before the court on four previous occasions with a total of 10 convictions, all dating back to the years 1997 to 1999. Eight of those convictions were theft related charges; one was possession of an ID card relating to another person; and one was a possession of a dangerous drug offence. The defendant had been detained in Detention Centre and put on probation.
Given that these convictions are dated, I am not going to take those into account when considering the sentence to be passed on the defendant in this case.
In mitigation, it was said that the defendant only committed this offence out of greed. A letter written by the defendant’s father was given to the court in which it was said that the defendant is a good-natured and responsible person and that he only committed the offence because of his low education.
Mr Luk for the defendant also told the court that the defendant is very remorseful and is determined to turn over a new leaf. He aims at becoming a chef one day. A lenient sentence was therefore asked for.
Sentence
The tariffs for trafficking in “ice” were laid down in AG v Ching Kwok Hung [1991] 2 HKLR 125 and corrected in HKSAR v Capitania CACC 28/2004, 11 August 2004, unreported. For trafficking over 600 grammes of “ice”, a term of 18 years’ imprisonment and upwards is called for.
In HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the Court of Appeal recast the guidelines for trafficking in “ice” in that for amounts of 600 grammes and over, the same tariffs as are prescribed in HKSAR v Abdallah [2009] 2 HKLRD 427 are to be applied. In other words, for 600 grammes to 1,200 grammes of “ice”, a term of imprisonment of 20 to 23 years is appropriate after trial. However, the new guidelines are only applicable for offences committed after the judgment was handed down, that is, 9 June 2014. In other words, they are not applicable in the present case as the offence was committed by the defendant in February 2014.
In HKSAR v Chan Po Wah & Another CACC 179/2012, 26 March 2013, unreported, the Court of Appeal commented that although no revision had taken place in respect of the sentencing tariff for over 600 grammes of “ice” and although other sentencing decisions of the Court of Appeal in respect of very large quantities of “ice” would only be of limited value on sentence appeals, such decisions could assist a sentencing court in two ways; firstly, to avoid the danger of mathematical progression and, secondly, to achieve consistency in sentences.
Following the Ching Kwok Hung tariffs and having considered all the relevant facts, as well as to achieve consistency as far as possible, I take the view that a starting point of 19 years is appropriate for the 976 grammes of “ice” involved.
In respect of the fact that the defendant carried the drug across the border, I am going to enhance the sentence by 2 years to reflect this international element (see HKSAR v Abdallah and HKSAR v Chung Ping Kan CACC 85/2014, 2 July 2014, unreported).
The defendant pleaded guilty. He will get a one-third reduction for that.
Other than his plea, I also take account of the fact that he had participated in a controlled delivery. Although the exercise turned out to be futile, I accept that he had tried to assist the authority in arresting the others involved by going to the appointed place and by making the phone call to the other person. However, I have been told by the prosecution that the phone was not answered. Obviously, the Customs Officers could not then take it any further. This, of course, is not something which the defendant could control. Therefore, I am going to give him a further reduction of 1 year for his assistance.
21 years reduced by one third is 14 years’ imprisonment. 14 years reduced by one year is 13 years’ imprisonment.
The defendant is therefore to serve a term of 13 years for this offence.