COURT: The defendant pleaded guilty to three charges of trafficking in dangerous drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
The defendant was stopped and searched by police and inside his shoulder bag were 16 plastic bags containing a total of 12.3 grammes of a solid containing 7.94 grammes of cocaine. He admitted knowledge and possession. An address rented by him was revealed in an electricity bill found in his shoulder bag.
A search of that address subsequently revealed the drugs which are the subject matter of Charge 2, namely, 792.28 grammes of a solid containing 474.10 grammes of cocaine and 963 tablets and 0.59 of a solid containing 144 grammes of MDMA. Other paraphernalia associated with packaging such as electronic scales, bowl and sieve, zip lock bags, resealable bags, aluminium trays and gloves were found inside the premises.
Under caution, the defendant admitted the drugs to be cocaine. Then he was later taken to his own residence for a search and drug which are the subject matter of the 3rd charge were found, namely, 17.3 grammes of a solid containing 12.7 grammes of cocaine and 19 tablets and 3.52 grammes of a powder containing 4.42 grammes of MDMA. He admitted those drugs were cocaine and ‘Fing Tau’. He now admits that he was in possession of all those drugs for the purpose of trafficking at the material time.
By way of mitigation, I was told that he is now aged 21, has a clear record, and suffering from life-long diabetes and he used to be a part-time transportation worker and lived with his parents. It was submitted that the defendant has performed a lot of volunteer work and community services and the present case is an out of character offence. It was advanced on his behalf that he was 19 at the time of the offence, he was immature and succumbed to request by a friend to rent the flat a month before the offence and deliver drugs from the flat. He stored some of the drugs at his own residence temporarily for delivery upon instruction.
In sentencing the defendant, I have taken into account the nature of the offences, the different kinds of drugs involved, sentencing authorities and tariff, as well as mitigation advanced by counsel and those contained in the mitigation letters where different parcels of drugs were found within proximity of time, the aggregate amount is relevant for the purpose of sentencing.
In the present case, the total amount of cocaine in respect of the three charges is 494.74 grammes and the total amount of MDMA is 148.42 grammes. Looking at these two drugs individually, 494.74 grammes of cocaine would be within the 400 to 600 grammes, 15 to 20 years tariff which calls for a starting point of 17 years. 148.42 grammes of MDMA falls within the 50 to 300 grammes bracket, 6 to 9 years and calling for a starting point of 7 years.
Looking at the two drugs, the most potent drug in the present case is the cocaine. As said above, the 494.7 grammes of cocaine would attract 17 years as a starting point. In determining by how much this starting point would be increased taking into account the quantity of the MDMA, the various tests in the case of Chan Yuk Leong are examined.
First, the absurdity test. Assuming the entire quantity of drugs, namely, 494.74 plus 148.42 grammes totalling 643.16 grammes are all cocaine, it will attract a starting point of 20 years. On the other hand, assuming the entire quantity of drugs are MDMA, the starting point would be 12 years.
Secondly is the conversion test. Here, the 148.42 grammes of MDMA, ie, around a 7-year starting point would be converted into 38 grammes of cocaine. So adding 447.74 to 38 which is totalling 532.74 grammes of cocaine, that will attract a starting point of 18 years and 6 months.
Thirdly, the ratio test. As said before, the entire quantity of drugs is 643.16 grammes, so the ratio of cocaine and MDMA is 77 per cent and 23 per cent. So assuming 643.16 grammes of single drugs of cocaine attracting 20 years by the ratio of 77 per cent would end up in a sentence of 185 months.
On the other hand, for the MDMA, assuming all the single drugs for MDMA attracts 12 years with the ratio of 23 per cent attracts 33 months. So adding up the 185 months to 33 months end up an 18 years starting point.
I am of the view that the 18 years starting point reached by using the ratio test is the most favourable to the defendant. However, in accordance with HKSAR v Herry Jane Yusuph, CACC 93/2019, I have to consider the role played by the defendant.
Paragraph 43 there says that where a greater or lesser role or purpose can be demonstrated on the facts of a particular case, then the starting point for the sentence can be appropriately increased or decreased.
Paragraph 59 defines a courier or a storekeeper as the person who is delivering, distributing or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.
In the present case, there are circumstantial evidence pointing to the fact that the defendant is not a mere courier or storekeeper. He rented a flat in respect of the 2nd charge a month before his arrest. He had taken the drugs stored in that location back to his own residence for storage. There were paraphernalia such as electronic scales and large quantities of resealable plastic bags which are consistent for packaging and an actual trafficker is in a more serious position than a mere courier or storekeeper.
Paragraph 71 laid out some other aggravating features but none exhaustive, one of which is dealing in more than one type of dangerous drugs which is present in this case.
The presence of these aggravating features warrants an upward adjustment of the overall starting point to 19 years. Taking into account his timely plea, he is entitled to the full one-third discount which results in an overall sentence of 152 months, that is 12 years and 8 months.
For purpose of apportionment, I will portion into three charges as follows:
Charge 1, 32 months; Charge 2, 12 years; Charge 3, 3 years. I order 4 months out of each of Charge 1 and Charge 3 to run consecutively to the sentence of 12 years in Charge 2, making it a total of 12 years and 8 months.