COURT: The defendant pleaded guilty before a magistrate to two 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.
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.
The facts of the case may be summarised as follows. On 15 June 2022, customs officers intercepted the defendant outside a public housing block. Upon search, inside his trouser pocket, three paper tissues containing dangerous drugs were found.
Upon arrest, the defendant said those items were “Coke” and “Perfume”, which were his drugs, and he was instructed by someone unknown to deliver the drugs. The reward would be $200 for each round of delivery. He was then taken back to his home where further dangerous drugs were found.
Under caution the defendant said the items were “Coke” and “Perfume”, which were his drugs that would be delivered. There was also an electronic scale and empty resealable plastic bags which he admitted where for packing of drugs.
In the mobile phone of the defendant, there were messages with a person called Hing Gor discussing about deliveries and weight, as well as photographs depicting resealable plastic bags with substance inside.
The dangerous drugs in the trouser pocket of the defendant were 51.80 grammes of a solid containing 42 grammes of ketamine and 6.09 grammes of a solid containing 5.22 grammes of cocaine. The dangerous drugs found at his home were 668.10 grammes of a solid containing 535.70 grammes of ketamine and 37.59 grammes of a solid containing 30.19 grammes of cocaine.
I was told that the defendant is now 29 years of age. He received education up to Form 4. He is married with a daughter, 8 years old. He had a stable job working as a trimming worker with monthly income about $19,000. He has a clear record.
Learned counsel for the defence, Mr Victor Lee, urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity and is now remorseful. He stressed that the defendant had no criminal record before. He informed the court that the defendant did engage in volunteer work and assisted firemen during typhoons.
He submitted that the role of the defendant in this case was that of a storekeeper and courier. Mr Lee also submitted that as the quantity of the cocaine was so small, in the context it might be ignored for the purpose of sentence.
The defence produced a letter written by the defendant in which he expressed remorse. He also set out some background information and the depression reason why he became engaged in gambling. He said he committed the present offences because he was unduly lured by the attractive reward.
The defendant’s family is supportive to him. Members including his wife, mother, sister, uncle and aunt wrote letters saying that the defendant is good in nature and responsible to the family and they plead leniency. Most of them are present today in court. His employer also wrote a letter, confirming the employment of the defendant with him and praising for his good attitude towards work and other aspects.
In all the circumstances of the case, I see no reason to depart from the tariff for each type of the drugs. I consider sentence on the basis, as Mr Lee submitted, that the defendant was a storekeeper and courier.
Charge 1 involved 42 grammes of ketamine and 5.22 grammes of cocaine. For trafficking in ketamine, as held in SJ v Hii Siew Cheng [2009] 1 HKLRD 1, if the narcotic content is 10 to 50 grammes, a sentence of 4 to 6 years should be considered. For trafficking in cocaine, it was held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69, that the guidelines for sentence in R v Lau Tak Ming [1990] 2 HKLR 370 are applicable.
In Lau Tak Ming, the Court of Appeal suggested that for sentencing in heroin of a quantity of up to 10 grammes, a sentence of 2 to 5 years should be considered. Two 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.
Whilst cocaine is more harmful in effect, its quantity was much smaller than that of ketamine. There were 42 grammes of ketamine, it by itself attracts a starting point of about 5 years and 7 months. 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 my view, the sentence should be appropriately adjusted taking into account the additional quantity of cocaine. In consideration, I also bear in mind that trafficking in different types of drugs presented two possible aggravating features of a wider market and the effect on users of combination of dangerous drugs.
In the circumstances of the present case, I am of the view that the sentence should be enhanced by about 2 months for this factor. In all the circumstances, taking into account that two drugs were involved and the quantity of the drugs, I adopt 6 years as the notional sentence after trial for Charge 1.
Charge 2 involved 535.70 grammes of ketamine and 30.19 grammes of cocaine. For the ketamine alone, according to Hii Siew Cheng, a sentence of 9 to 12 years’ imprisonment should be considered.
Adopting the same approach, having regard to the factors also applicable in the circumstances of Charge 2, including that in my judgment the sentence should also be enhanced by 2 months as two types of drugs were involved, I adopt 11 years and 9 months as the notional sentence after trial for this charge.
The defendant pleaded guilty before a magistrate and for this he is entitled to a one-third discount. Having considered the whole circumstances, including what Mr Lee mitigated on the defendant’s behalf, I am of the view that one-third is the extent of discount the defendant is entitled to in each charge.
Defendant, for the reasons I have said, I impose the following sentences on you. Charge 1, an immediate imprisonment term of 4 years. Charge 2, immediate imprisonment term of 7 years and 10 months.
You were convicted of two charges. In the circumstances of the case, it is appropriate to consider the aggregate sentence having regard to the total quantity of the drugs found. In my judgment, taking into account the total quantity of the drugs, the aggravating factor and the overall circumstances of the case, 12 years and 3 months should be the appropriate overall notional sentence after trial. You are entitled to a one-third discount from this aggregate sentence. The end result is 8 years and 2 months’ imprisonment.
To give effect to this, I order 4 years and 2 months of the sentence of Charge 2 to run consecutively to that of Charge 1. You are to serve a total sentence of 8 years and 2 months for the two charges.