The facts of the case may be summarised as follows.
The defendant was the driver of a car which had avoided a roadblock. When the car stopped and the defendant and another person alighted from it, officers approached and conducted a search. Inside the car, the dangerous drugs related to the case were found. Under caution, the defendant admitted that a friend had handed over the items to him and he was to receive a reward of $3,200.
I was told that the defendant is now 23 years of age. He is single. He received education up to Form 3 and had completed a one-year course at the VTC. He had worked as a welding worker and had stopped working since 2019 because of depression. He has been receiving CSSA. He did not have any previous criminal conviction record.
Learned counsel for the defence, Mr Donald, urged me to take into account that the defendant had pleaded guilty at the earliest opportunity. He informed the court that the defendant committed the offence as he was in desperate need of money and in such circumstances he was lured by a friend to deliver drugs to earn quick money. Mr Donald urged the court, which I accept, to treat the defendant as a courier of the drug. Mr Donald also asked the court to take into account that the defendant intended to keep about 15 grammes of the cocaine for his own consumption.
Mr Donald told the court that the depression condition suffered by the defendant has improved but medication is still required. He also asked the court to take into account that the defendant had been co-operative with the authority and tried his best to assist.
The defence produced letters written respectively by the defendant himself, his mother, sister and brother-in-law as well as from a social worker. I was told that the defendant is now remorseful and has the full support of the family.
The dangerous drugs the defendant trafficked in was ketamine as well as cocaine. The total narcotic content was respectively 435.21 grammes of ketamine and 154 grammes of cocaine. As two kinds of drugs were involved, I follow the approach as stated by the Court of Appeal in HKSAR v Islam S M Majharul [2020] 3 HKLRD 146. I have also had regard to the Court of Appeal cases such as HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Yau Ka Ming, CACC 144/2013, HKSAR v Chan Yuk Leong, CACC 318/2013 and HKSAR v Cheung Wai Man [2019] 1 HKLRD 817.
I adopt the combined approach and check whether the starting points to be adopted is fair and appropriate by testing it against the absurdity test, the conversion test and the ratio test. In the course of the exercise, I note that cocaine was the more potent drug in terms of harm but ketamine was of a higher quantity. I have also had regard to the two possible aggravating features of a wider market and the effect on users of combination of dangerous drugs. I remind myself that in determining an enhancement to a sentence for any aggravating factor, I should ensure that:
(1) the original starting point should be proportionate to the actual sentence;
(2) the degree of enhancement should be in reasonable proportion to the basic sentence; and
(3) the total ultimate sentence should not be excessive.
The defendant, relying solely on submission on counsel claimed that a small part of the cocaine found was intended for his own consumption. In this connection, I have a regard to HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and HKSAR v Tan Xiu Yun [2015] 5 HKLRD 872 and take into account matters including the positive urine test conducted after the defendant’s arrest, the estimated cost of the drug and the means of the defendant.
In all the circumstances, I am prepared to accept that a small quantity of the cocaine seized, not to the extent of 15 grammes, would have been intended for his own consumption. In consideration, I have to take into account that even for the offence of possession of dangerous drug, a sentence of custodial nature would be imposed having regard to the quantity asserted. Moreover, my assessment is that the latent risk was very high.
Having taken into account the above factors and having had regard to the case of HKSAR v Tam Ling Yuen, CACC 159/2015, and the more recent Court of Appeal decisions in HKSAR v Yeung Shek Yung, CACC 314/2016 and Cheung Wai Man mentioned earlier, whilst a discount for this reason should normally only be given when a significant proportion of the drug was intended for self-consumption, I will make a downward adjustment of 3 months from the starting point.
In all the circumstances, taking into account that trafficking in more than one type of dangerous drug is an aggravating factor and the assertion of self-consumption, in my judgment a notional sentence after trial of 13½ years is appropriate and sufficient in the present case. The defendant pleaded guilty before a magistrate. He is entitled to a one-third discount.
Having considered the whole circumstances including what learned counsel has said on his behalf, in my judgment I am persuaded to give the defendant 1 more month of discount. I have also had regard to the recent Court of Appeal case of HKSAR v Herry Jane Yusuph, CACC 93/2019.
By reasons of the matters aforesaid, I sentence you to an immediate imprisonment term of 8 years and 11 months.