COURT: The defendant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.
It is alleged that he, on 29 June 2021, outside No. 26C Jordan Road, Yau Ma Tei, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 58.6 grammes of a solid containing 48.17 grammes of cocaine.
The defendant pleaded guilty to the charge before the magistrate at the committal stage and was, on 13 September 2022, committed to the Court of First Instance for sentence.
Hence, he comes before me today for sentence. He confirms his plea and his admission to the Summary of Facts read out in court today.
Facts of the Case
The facts giving rise to this case are as follows:
At around 12:56 am on 29 June 2021, a police officer was patrolling with his teammates along Jordan Road, Yau Ma Tei, where he saw the defendant keeping his head down and walking next to a wall. When the police officer tried to stop the defendant for a search, the defendant fled towards Woosung Street. When he reached No. 26C Jordan Road, he was intercepted by another police officer and was subdued.
The police officer conducted a search on the defendant and found 72 transparent resealable plastic bags containing a total of 58.6 grammes of a solid containing 48.17 grammes of cocaine. Cash of $7,622 was also found on his person.
When the defendant was arrested by the police, he said under caution that the dangerous drugs were for his own consumption. On that aspect, Ms Chan, counsel for the defendant appearing for today, now sensibly confirms that the entire amount of the dangerous drugs seized was indeed for unlawful trafficking and not for his own consumption.
In the subsequent video-recorded interview, the defendant admitted under caution that he purchased the dangerous drugs from a person named ‘Ah Keung’ at a total price of $30,000.
The estimated street value of the drugs seized from the defendant at the time of the offence was $88,720.
The Defendant’s Background
The defendant is now 50 years old, divorced and was born in Hong Kong. He received education up to Form 2 level. At the time of the arrest, he claimed to be a driver earning around $15,000 per month. He is the elder son of the family and he lived with his parents. His younger sister is a housewife and lives with her own family.
The defendant’s father (aged 89) and mother (aged 75) were both aged and chronic patients. His father suffered from macular degeneration and is left with 20 per cent eyesight. His mother suffered from breast cancer had undergone surgery.
The defendant has 14 criminal conviction records, involving 22 counts of offences committed over a time span of 31 years from 1989 to 2020. He was convicted of two counts of trafficking in a dangerous drug in April 2003, for which he was sentenced to 4 years and 4 months’ imprisonment in the High Court. And in March 2015, he repeated the same offence and was sentenced to 2 years and 4 months’ imprisonment for a count of trafficking in dangerous drugs. He had also been convicted of a number of other offences, including possession of dangerous drugs for three times in 1994, 1996, and 2001. The record shows that he is a repeated offender in drug-related offences.
Sentencing Principles and Tariff
The law in relation to sentencing of drug traffickers was explained by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, and it involves a six-step approach.
The first step requires the court to assess the gravity of the offence by looking at the type and quantity of the drug involved. There is only one type of dangerous drugs involved in this case, namely cocaine, in the amount of 48.17 grammes. The sentencing tariff that is applicable to trafficking in the range of 10 grammes to 50 grammes of cocaine can be derived from the case of R v Lau Tak Ming & Others [1990] 2 HKLR 370, which is a case for heroin, but it is confirmed in HKSAR v Abdallah [2009] 2 HKLRD 437 to be also applicable to the drug of cocaine. The starting point for that range is one of between 5 and 8 years’ imprisonment.
The second step is to assess the role and culpability of the defendant. It is submitted by Ms Chan that the defendant was merely a courier who helped in the delivery of drugs in accordance with instructions. That accords with the facts as admitted by the defendant, albeit he claimed in the cautioned statement that he had managed to purchase the drugs at a price of $30,000. I accept Ms Chan’s submission that the defendant’s role is one of a mere courier.
The third step is to identify where in the relevant band of the guidelines the defendant comes. Given the role of the defendant as a courier, I accept that the relevant sentencing band of 5 to 8 years’ imprisonment for quantities of 10 to 50 grammes of cocaine should be applicable in this case. On that note, the mathematically-calculated weight-based starting point is therefore one of around 7.9 years, which is translated to 7 years and 10 months’ imprisonment.
The fourth step is to consider whether there is any aggravating factor which warrants an enhancement of the starting point. It has been established by the authorities, including Lau Tak Ming, Abdallah, HKSAR v Chau Hon Kwong [2011] 1 HKLRD 630, that a previous conviction for trafficking in dangerous drugs will justify an enhancement of the starting point for sentence.
Taking into account the defendant’s previous conviction records, in particular those involving trafficking in dangerous drugs in the year of 2003 and 2015, I am of the view that there is basis for this court, and indeed the court is required in accordance with the principles, to enhance the sentence. And I would enhance the sentence by 3 months, which I think is appropriate in the circumstances of this case. This will bring the overall starting point to one of 8 years and 1 month.
Fifthly, I am required to have due regard to all mitigating factors. However, as the Court of Appeal made it clear in Herry Jane Yusuph, in cases of trafficking in dangerous drugs, personal circumstances will count for little, unless they are exceptional. In this case, despite what has been said on his behalf in relation to his personal and family circumstances, I find that the only effective mitigating factor is the defendant’s timely and early plea of guilty at the committal stage. For that, I am prepared to give the full one-third discount to the defendant in accordance with the sentencing approach in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. Hence, I will reduce the overall sentence to one of 5 years and 4 months.
The final stage of the sentencing process is to stand back and look at the overall sentence passed to make sure that it is fair and just. Taking into account the circumstances of the offence and the submissions made by Ms Chan on the defendant’s behalf, I am of the view that the ultimate sentence of 5 years and 4 months’ imprisonment in the circumstances of this case is appropriate and is not out of proportion to the defendant’s overall criminality.
Hence, the final sentence that I would impose on the defendant is one of 5 years and 4 months’ imprisonment.