COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug in the Magistrates’ Court. He pleaded to unlawfully trafficking in 27.5 grammes of a crystalline solid containing 27.2 grammes of methamphetamine hydrochloride, ‘Ice’. He was committed for sentence on 10 August 2023 and today confirms his plea and agreement to the Summary of Facts.
The Summary of Facts
On 9 July 2022, the defendant was driving a private car, PC4362, in Mong Kok, when his vehicle was spotted driving erratically as a police vehicle approached it. This made the police suspicious and they chased after the defendant. They stopped the vehicle and intercepted it. The defendant was in the driver’s seat with another male in the front passenger seat. Both men were searched with nothing suspicious found.
The vehicle was searched and in the glove compartment in front of the passenger seat was a tissue containing a resealable plastic bag containing the ‘Ice’ of this charge. Both men were arrested and both maintained their right to silence.
Later in a video-recorded interview, the defendant admitted that a friend had asked him to deliver the drugs for a reward of $1,000. He had borrowed the vehicle that day and would deliver the drugs later. Only he knew the drugs were in the glove compartment. The defendant admits the estimated market retail value at the material time was $16,693.
Mitigation
The defendant is now 53 years old, separated from his wife and was a part-time cleaner at the time of his arrest. He is not a man with a clear record. He has 34 previous convictions from 30 court appearances. He has 15 convictions that relate to dangerous drugs of which three are similar trafficking in dangerous drugs convictions in 1997, 2004, and 2006.
Mr Leung has said all he can say on behalf of the defendant in mitigation. The defendant’s best mitigation is his plea of guilty at the earliest opportunity.
Sentencing
It is well established that trafficking in a dangerous drug is a very serious offence. I have considered the approach to sentencing those that traffic in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, that was very recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.
In the approach to sentencing, six steps have been identified which the court should take, such as assessing the gravity of the offence and applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors, and lastly passing a sentence which is fair, just and balanced in all the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug seized. The tariff for the drug ‘Ice’ is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The starting point for trafficking between 10 to 70 grammes of ‘Ice’ is 7 to 10 years’ imprisonment. Therefore, trafficking in 27.2 grammes of ‘Ice’ in this case would mathematically attract a starting point of 8 years and 2 months’ imprisonment.
The second step of the six steps is to assess the defendant’s role and culpability based upon the evidence. When arrested, the defendant admitted he was delivering the drugs for a reward, acting as a courier, therefore going on to take into account the third step, his sentence is to be determined by the relevant tariffs and the quantity of dangerous drugs involved. That would be a starting point of 8 years and 2 months’ imprisonment.
The fourth and fifth step require me to consider whether there are any aggravating factors or any exceptional mitigating factors. I do not find any mitigating factors other than his plea of guilty at the earliest opportunity. I have considered his many previous convictions of a similar nature but since his last similar conviction was about 16 years ago, I will not consider it an aggravating factor this time.
The defendant did plead guilty at the earliest opportunity and is therefore entitled to a one-third discount. Therefore, that starting point of 8 years and 2 months is reduced to 5 years and 5 months after that discount is applied.
The last step to take is to stand back and look at the overall sentence in order to ensure that it is a fair, balanced, and just sentence in all the circumstances not only of the offence but also the defendant. Here I see no issue with it.
Accordingly, the defendant is sentenced to 5 years and 5 months’ imprisonment.