COURT: The defendant is charged with one count of trafficking in dangerous drugs. She pleaded not guilty and after trial was found guilty by the jury. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, 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, as well as the sentencing tariff cases.
The facts of the case may be summarised as follows.
On 8 June 2022, police officers saw the defendant open the gate and the door of a flat in a public housing estate and followed her into the flat. Inside the flat were a living room and a bedroom. Officers carried out a search in the flat. As a result of the search, the following dangerous drugs were found in the bedroom:
(1) 146.8 grammes of a mixture containing 121.64 grammes of heroin hydrochloride;
(2) 138.57 grammes of a solid containing 114.75 grammes of methamphetamine, which is commonly known as ‘Ice’;
(3) 24.75 grammes of cannabis in herbal form;
(4) 1.2 grammes of a solid containing 0.3 grammes of ketamine.
The defendant was carrying a black wallet containing some $58,000 in cash. Inside the pillowcase put at the bedside cabinet area in the bedroom, a pile of cash in the total amount of $95,000 was found. The defendant denied possession of this batch of money.
The defendant was arrested for the offence of trafficking in dangerous drugs. At the flat, under caution, the defendant said she had nothing to say. The defendant was later admitted to a hospital since she said she was unwell. Then the defendant was interviewed. The defendant denied possession of the dangerous drugs found. She said she did not know the existence of the dangerous drugs. She answered some questions including those relating to the keys, source of some money, and who had lived in the flat.
I was told that the defendant is 57 years of age. She was born in Beijing and received education there up to junior secondary level. She came to Hong Kong in 1997 and became a local resident. She had worked as a kitchen assistant and cleaning worker. Her average income was about $20,000 a month. She got married when she was in Beijing and the couple divorced in 2015.
She obtained the flat since then and rented it to a man who later became her boyfriend. She had worked in the mainland for some time and only in October 2021 returned to Hong Kong and lived in the flat with her boyfriend. In May 2022, her boyfriend passed away. The younger brother of the boyfriend came to deal with matters relating to the boyfriend. He stayed in the flat and was present when police officers came. The defendant has a daughter about 30 years old. The defendant does not have a clear record. Her previous conviction however was not related to drugs, it was for a minor offence of unlawful gambling.
In all the circumstances of the present case, I see no reason to depart from the tariff for each type of the drugs. I consider sentence on the basis that the defendant was to distribute or supply drugs to others which was the basis of the allegation of the prosecution against the defendant. For trafficking in ‘Ice’ according to HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, if the narcotic content is between 70 and 300 grammes, an imprisonment term of 11 to 15 years should be considered.
For trafficking in heroin, the Court of Appeal suggested in R v Lau Tak Ming that for sentencing in heroin of a quantity between 50 to 200 grammes, a sentence of 8 to 10 years should be considered. The quantity of ketamine was very low. As regards the cannabis, just taking the quantity into account, a significant sentence is not called for.
That said, four types of 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. There were 121.64 grammes of heroin. Applying the said tariff, taking into account the quantity alone, a starting point of about 9 years and 10 months is called for. There were 114.75 grammes of ‘Ice’. Applying the said tariff, taking into account the quantity alone, a starting point of 11 years and 9 months is called for. The quantity of ‘Ice’ was slightly less than that of heroin, but its potency is higher and can bring more harm.
In deciding the notional sentence after trial, I adopt the combined approach and check whether the notional sentence to adopt is fair and appropriate by testing it against the absurdity test, the conversion test, and the ratio test. In addition, I have to take into account that trafficking in different types of drugs presented two possible aggravating features of a wider marker and the effect on users of combination of dangerous drugs.
In consideration, I bear in mind that the quantity respectively of the heroin and ‘Ice’ was quite substantial. Having assessed the impact of these aggravating features in the circumstances of the present case, warning myself against the risk of excessive enhancement, I am of the view that the sentence should be enhanced by about 9 months for these factors. Having considered the whole of the relevant circumstances and having regard to submission of counsel, I adopt 13 years and 3 months as the notional sentence after trial.
The defendant pleaded not guilty. In all the circumstances, I do not consider there exists any reason to justify a discount. For the reasons I have said, I sentence you to an immediate imprisonment term of 13 years and 3 months.