COURT: The defendant pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug 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 drug involved, personal background of the defendant and mitigation put forward on his behalf. I have also have regarded the sentencing approach as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, and HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
The facts of the case may be summarised as follows: on 2 March 2023, the defendant was sitting in the driver’s seat of a car parked on the street. Police officers found him suspicious and demanded a search. Nothing illegal was found on the person of the defendant. During the search of the car, the defendant attempted to flee. He eventually fell and was subdued despite he put up some fierce resistance.
Upon further search of the car, dangerous drug was found inside a plastic bag put between the front left passenger seat and the centre glove compartment.
The drug was 255 grammes of a solid containing 216 grammes of ketamine. A scale was also found. The defendant was arrested for the offence of trafficking in a dangerous drug and under caution he remained silent.
I was told the defendant is about to be 29 years old. He is single and had been living with his parents and elder brother. He has attained a higher diploma in Mechanical Engineering. At the time of the offence, he was employed as a construction worker. He did not have any criminal conviction record.
Counsel for the defence, Ms Manyi Tsang, stressed that the defendant had pleaded guilty at the earliest opportunity. Ms Tsang also urged the court to find the role of the defendant as one of a lone courier and there is no aggravating feature in the case. She said the defendant came from a good family background and committed the offence under bad influence of undesirable peers. The defence produced a letter written by the defendant in which he expressed remorse.
Ms Tsang told the court that the defendant is pursuing a degree course and determined to turn a new leaf. The defence also produced letters from family members of the defendant, his former employer and the chaplain of the Correctional Services Department. The defendant is described as a person of good nature and all are satisfied that the defendant is full of remorse.
Ms Tsang also told the court that the defendant had been active in charity and public work, in particular in training underprivileged children to swim. She also informed the court with supporting medical document that the mother of the defendant is not enjoying good health. Family members and a friend are present in court to show their support to the defendant.
The dangerous drug which the defendant trafficked in was ketamine and the narcotic content was 216 grammes. According to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD1, if the narcotic content is 50 to 300 grammes, an imprisonment term of 6 to 9 years should be considered. Having considered the whole circumstances of the present case, I see no reason to depart from the tariff.
As I accept the submission of Ms Tsang, I consider the sentence on the basis that the role of the defendant was a courier. In any case, low in the hierarchy. In fact, there is no aggravating feature which calls for an enhancement of the sentence.
Having considered the whole of the relevant circumstances, taking into account this was the first time the defendant committed an offence, I adopt 7 years and 11 months as the notional sentence after trial.
The defendant pleaded guilty before a magistrate and for this he is entitled to a one-third discount. Having considered the whole circumstances and the mitigation submission ably put forward for the defendant, and taking into account this is the first time the defendant committed an offence, I am of the view that one-third is the extent of the discount the defendant is entitled to.
In my judgment, the sentence to be imposed appropriately reflects the culpability of the defendant, and is a fair, just and balanced one in all the circumstances of the case and of the defendant.
Defendant, please stand up. For the reasons I have said, I sentence you to an immediate imprisonment term of 5 years and 3 months.