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HCCC 396/2017
[2019] HKCFI 298
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 396 OF 2017
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| Date: |
17 January 2019 at 9.56 am |
| Present: |
Mr David Boyton, on fiat, for HKSAR |
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Mr Hanif Mohamed Mughal, instructed by Tai, Tang &
Chong, assigned by DLA, for the accused |
| Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT:
The defendant pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
She was stopped and searched by the police outside premises to which a search warrant had been executed. From her handbag, a total of six packets of drugs wrapped inside two pieces of tissues were found. She admitted under caution that she was acting pursuant to instructions from a tenant inside the premises to collect those from an Indian lady for a reward of HK$4,000. She now admits that she was trafficking in the dangerous drugs by delivering them to another person for a reward.
Upon analysis, the drugs were found to be 99.5 grammes of a solid containing 54.4 grammes of cocaine and 27.8 grammes of a crystalline solid containing 25.6 grammes of methamphetamine hydrochloride.
The estimated value of all the drugs was $87,850.
By way of mitigation, I was told that the defendant is Bengali who is aged 28 and is of a clear record. She had terminated her employment as a domestic helper and at the time of the arrest she was doing odd-jobs and living on the generosity of friends. It is advanced on her behalf that she committed the present offence for financial gain because of the financial difficulty that she was in. Counsel urges me to take into account her plea, although not a timely one, and counsel concedes that the discount should fall within the 20 to 25 per cent bracket.
In sentencing the defendant, I have taken into account the nature of the offence, the different kinds of drugs involved and the sentencing authorities and tariffs, as well as mitigation advanced by counsel.
There are two kinds of drugs involved here. First, 54.4 grammes of cocaine which falls within the 50 to 200 grammes that is 8 to 12 years bracket. Secondly, the 25.6 grammes of ‘Ice’ which falls within the 7 to 11 years bracket. I then apply the various tests as laid down in the case of Chan Yuk Leong to calculate and countercheck.
First, the absurdity test. Assuming the entire quantity of drugs, ie, 80 grammes are all ‘Ice’, that would be within the 70 to 300 grammes, 11 to 15 years bracket, the starting point would be around 11 years.
Secondly, the conversion test. Here, the 54.4 grammes of cocaine would have attracted a sentence of about 8 years, likewise, for about 25.6 grammes of ‘Ice’. Therefore, converting 54.4 grammes of cocaine into 25.6 grammes of ‘Ice’, that would be a total of 51.2 grammes of ‘Ice’, and the starting point would be around 9 years and 9 months.
Thirdly, is the ratio test, which means allowing the ratio of the weight of the two different kinds of drugs and their related ranges of sentences. As I have said, the total weight of narcotics, being 80 grammes, so cocaine is around 68 per cent, whilst the ‘Ice’ is around 32 per cent. So assuming 80 grammes of a single drug of cocaine would attract 9 years, whilst 80 grammes of a single drug of ‘Ice’ would attract 11 years, with a ratio of 0.68 or 9 years, would end up with a sentence of 6.12 years. Whilst assuming 80 grammes of a single drug of ‘Ice’ would attract 11 years with a ratio of 0.32, the sentence would be 3.35 years. So adding the 6.12 and 3.35 together, that would be a total of 9.64 years, 9.64 years starting point.
However, then I have to take into consideration the aggravation of the two different kinds of drugs trafficked. So the end result would again be similar to the absurdity test, the starting point of 9 years and 9 months. Therefore, I would adopt 9 years and 9 months as a starting point.
As it is only indicated that the defendant would plead guilty after the case has been set down for trial, she is entitled to a discount between 20 to 25 per cent.
This defendant is sentenced to 90 months’ imprisonment, which is around 23 per cent discount.
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