COURT: The defendant pleaded guilty before a magistrate to three charges of trafficking in dangerous drugs 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 drugs involved, personal background of the defendant and mitigation put forward on his behalf by learned defence counsel.
The facts of the case may be summarised as follows. On 4 November 2022, the defendant was intercepted on the street. Later, a search was conducted on him and a small quantity of cocaine was found in his right rear trouser pocket. The dangerous drug was 0.14 grammes of a solid containing 0.12 grammes of cocaine. This is the subject matter of Charge 1.
Then the defendant was brought back to his home. The flat has four rooms, namely a bedroom, two study rooms, and one storeroom. His girlfriend was sleeping in the bedroom.
A search was conducted in the flat. In a study room, cocaine and cannabis, which are the subject matters of Charge 2, were found. There was a total of 14.1 grammes of a solid containing 11.9 grammes of cocaine inside one of the many model boxes. The defendant said all the cocaine belonged to him and he carried the goods on others’ behalf to make quick money.
There were also 171.07 grammes of herbal cannabis in 32 small plastic bags put inside a plastic bag placed underneath a desk. There were also more than 1,000 empty resealable plastic bags in this study room. In the storeroom, 60 bags of cannabis were found. It was a total of 29,610 grammes of herbal cannabis and is the subject matter of Charge 3. The defendant and his girlfriend were jointly charged for this batch of cannabis. The girlfriend was found not guilty by the jury after trial.
I was told that the defendant is now 21 years of age. At the time of the offence, he was 18 years old and studying Form 6. He was not living with his family which includes his father, a younger sister and a younger brother.
The defendant did not have any criminal conviction record. Learned counsel for the defence, Mr James Tze, urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity and is remorseful. Mr Tze also asked the court to take into account that the defendant is a first-time offender and was young when he committed the offence.
Mr Tze informed the court that the mother of the defendant passed away when the defendant was just 10 years old. Without much care from his father, the defendant was under bad peer influence. As he needed money for himself and wished to give financial support to the family, he succumbed to the temptation and agreed to undertake this illegal task.
Mr Tze stressed that the defendant was just acting under instruction and the costs of the operation, including rental of the flat, were borne by those engaging him.
The defence produced letters written by the defendant in which he expressed remorse. Also produced are letters by family members, previous teachers, and a social worker. In the letters, the defendant is described as a filial son, caring brother, good student, and a responsible youngster. They regarded this illegal act of the defendant as a conduct out of character. They all pleaded leniency on behalf of the defendant. Today, family members are present to show support.
In sentencing, I followed the sentencing approach as laid down in the cases such as HKSAR v Herry Jane Yusuph, CACC 93/2019 and HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186. I accept the submission of Mr Tze that the role of the defendant was low in the hierarchy. In the circumstances of the present case, I am of the view that the overall sentence should be one taking into account the total quantity of the drugs.
Two drugs were involved in Charge 2. In consideration, I followed the approach as stated by the Court of Appeal in HKSAR v Islam S M Majharul [2020] 3 HKLRD 146, and HKSAR v Chan Yuk Leong, CACC 318/2013. Having considered the whole of the circumstances, I see no reason to depart from the tariff for each type of the drugs.
Cocaine was obviously the more prominent drug both in terms of potency and harm. Cannabis was, however, in much larger quantity. As far as cocaine is concerned, having regarded the observation of the Court of Final Appeal in Seabrook v HKSAR [1999], 2 HKCFAR 184, I am of the view that the tariff set out in the recent case of HKSAR v Huang Ruifang (No. 3) [2025] 2 HKLRD 138 should be applied. It was held in this case that if the quantity of the narcotic is between 10 to 50 grammes, a sentence of 5 to 8 years should be considered. There was a total of about 12 grammes of cocaine. This quantity of cocaine alone attracts a notional sentence after trial of slightly more than 5 years and 1 month.
There were more than 29,000 grammes of cannabis in herbal form. The case was committed in November 2022 before the new tariff was set down in HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329 which was decided in January 2023. Therefore, the tariff in R v Tuen Shui Ming AR12/1994 is still applicable. The tariff suggested in the Tuen case was that for cannabis resin, if the quantity was over 9,000 grammes, a sentence over 4 years should be considered.
It was further held in that case that if the cannabis was in herbal form, the sentence should be adjusted to reflect the understanding at the time that the average concentration of THC in resin form was about four times higher than that found in herbal cannabis. Having regard to HKSAR v Touray Edrisa, CACC 124/2010, I am of the view that the quantity of herbal cannabis in this case should attract a notional sentence after trial of slightly less than 5 years.
As two types of drugs were involved, I adopt the combined approach and check whether the notional sentence after trial to adopt is fair and appropriate, by testing it against the absurdity test, the conversion test, and the ratio test.
In addition, I bear in mind that trafficking in different types of drugs presented two possible aggravating features which are, one, a wider market, and two, the effect on users of combination of dangerous drugs. In my judgment, an enhancement of around 5 months is appropriate in the circumstances of the present case for this factor. In my view, this enhancement of about 5 months should be reflected in the overall sentence, not only for Charge 2 which is his only charge involving two drugs, in particular as it would have been appropriate to lay one charge against the defendant in relation to the drugs in Charges 2 and 3, but for the technical reason that his girlfriend was jointly charged for Charge 3.
Bearing the enhancement in mind, I am of the view that an overall notional sentence after trial of 6½ years is appropriate to reflect the overall seriousness of the case and the culpability of the defendant. It is under this line of thought I decide the notional sentence after trial for each charge as follows: Charge 1, 2 years; Charge 2, 5½ years; Charge 3, 4 years and 11 months.
The defendant pleaded guilty before a magistrate and for this he is entitled to a one-third discount. The defendant committed this case when he was 18 years old. Though he was relatively young, in all the circumstances I do not consider it appropriate to give him further discount for this in the light of the serious nature of the case.
Having considered the whole circumstances and having regard to the previous clear record of the defendant, and everything said on the defendant’s behalf, in my judgment one-third is the extent of discount the defendant is entitled to both in relation to individual charges and the overall sentence.
In my judgment, the individual sentences and the overall sentence to be imposed are fair, just, and balanced in all the circumstances of the case and of the defendant. And the overall sentence is in accordance with the totality principle and not out of proportion to the defendant’s overall criminality.
For the above reasons, Defendant, I sentence you to the following immediate imprisonment terms: Charge 1, 1 year and 4 months; Charge 2, 3 years and 8 months; Charge 3, 3 years and 3 months. I order the sentences for Charge 1 and Charge 2 to run concurrently and 8 months of Charge 3 to run consecutively to the aggregate sentence of Charge 1 and Charge 2. You are to serve a total sentence of 4 years and 4 months for the three charges.