COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug in the Eastern Magistrates’ Court on 25 January 2024. He was committed to the Court of First Instance for sentence. The defendant had confirmed his plea and admission of the Summary of Facts before me.
Particulars of the offence are that on 18 November 2022 outside Tin Ma Court, 55 Chuk Yuen Road, Wong Tai Sin, Kowloon, the defendant unlawfully trafficked in dangerous drugs, namely, 47.4 grammes of a solid containing 44.6 grammes of cocaine.
The Facts
At 4.41 am on 18 November 2022, police officers intercepted a taxi a road block outside Tin Ma Court, 55 Chuk Yuen Road, Wong Tai Sin, Kowloon. The defendant was sitting at the left rear passenger seat of the taxi. He appeared nervous and his hand was pressing on his trouser pocket. Upon search, a piece of tissue wrapping two resealable plastic bags containing 47.4 grammes of a solid containing 44.6 grammes of cocaine was found inside his right front trouser
pocket. The defendant also has two mobile phones and cash of HK$15,100 on him. The defendant was then arrested.
In his subsequent video-recorded interview, he said under caution that he boarded the taxi outside Wing Sin House, Upper Wong Tai Sin Estate. According to the taxi driver, the defendant has boarded his taxi at that location at around 4.30 am that day and had instructed him to go to Harbourview Horizon in Hung Hom.
A search was conducted at the defendant’s home, no drug-related paraphernalia was found.
The estimated street value of the drugs seized was $39,531 for cocaine powder or $69,630 (for crack cocaine).
The defendant now admits and accepts that at the material times, he was in possession of the drugs seized for the purpose of unlawful trafficking.
Antecedent and Mitigation
The defendant was 27 years old at the time of arrest, he is now 29 years old. He was born in China and came to Hong Kong in 1998. He finished education up to Form 4 level. He has two previous convictions in total, not related to dangerous drugs.
According to his antecedents statement, he worked as a salesperson earning a monthly salary of around HK$18,000 at the time of arrest. In the letter written by the defendant, he said that due to the pandemic he became unemployed.
In mitigation, the defendant made a guilty plea at the earliest available opportunity. Mr Siu submitted that the defendant expresses remorse for the conduct he has undertaken and realised the harm he was doing. Mr Siu submits the defendant mixed with the wrong crowd and succumbed to the temptation to commit the present offence because he wanted to make money in order to alleviate the financial burden of the family.
During his custody, the defendant also took up religious courses. Mr Siu submits that he will continue to do so.
I have also read letters from the defendant, his mother, and his elder sister all asking for leniency on behalf of the defendant. In his letter, the defendant said he committed the offence under the pressure of unemployment and influenced by bad elements. He also reflects that despite his conduct, his family members visit him regularly on remand, giving him support and encouragement.
The defendant’s mother blamed herself for the conduct of the defendant and for not giving sufficient care and love as she suffers from ill health. She described him as a caring and supportive son. The defendant’s sister also attended in court and in her letter she stated that he is a reliable caregiver of the family, and she believed that the defendant has learned a valuable lesson. Mr Siu has said all he can say on behalf of the defendant.
Consideration of Sentence
The leading modern sentencing approach in trafficking cases is set out by the Court of Appeal in Herry Jane Yusuph [2021] 1 HKLRD 290 and Lee Ming Ho [2024] HKCA 150; [2024] 1 HKLRD 1186. I now determine the sentence following the 6-step sentencing approach as set out in Yusuph.
The sentencing tariffs for trafficking in cocaine are provided for in R v Lau Tak Ming [1990] 2 HKLR 370. For the quantities of 10 to 50 grammes, the sentencing band is 5 to 8 years’ imprisonment. The arithmetical calculation of weight-based starting point in this case is one of 7 years and 7 months’ imprisonment.
As for the defendant’s role and culpability, on the evidence I accept what Mr Siu said there is nothing to suggest that the defendant had any further role beyond the culpability of a courier. I therefore assess his culpability on that basis. I do not find any aggravating factors.
Regarding mitigating factors, Mr Siu also fairly accepts and rightly accepts personal circumstances will count for little unless they are exceptional in trafficking cases (see Yusuph at paragraph 73).
Although I accept the defendant is truly remorseful, personal circumstances in cases of this nature do not constitute mitigating factors and cannot provide the defendant with further sentencing discount.
The strongest mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount off the starting point, which brings the sentence down to 5 years’ imprisonment after rounding down.
I am of the view that the ultimate sentence of 5 years’ imprisonment is appropriate and is not out of proportion to the defendant’s overall criminality.
The sentence I would impose on the defendant is one of 5 years’ imprisonment.