COURT: The defendant Ma Yin-tai pleaded guilty to one count of trafficking in a dangerous drug, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. You pleaded guilty before a magistrate and committed to the Court of First Instance of the High Court for sentence.
Now, the summary of facts admitted by the defendant. The facts admitted by the defendant disclosed that on the day in question, the defendant was seen acting suspiciously next to a private car at the junction of Tung Choi Street and Nullah Road. So he was intercepted by the police. At the time there was a woman, that is the defendant’s girlfriend, who was sitting inside the car.
Upon search of the car, the police seized the following.
Inside the storage compartment under the centre touchscreen:
(1) a plastic bag containing 26.6 grammes of a crystalline solid containing 26.3 grammes of ‘Ice’; and
(2) another plastic bag containing 2.77 grammes of a crystalline solid containing 2.74 grammes of ‘Ice’.
Then, inside the centre console tray that is the compartment between the driver and the front passenger seat, there was a plastic bag containing 6.67 grammes of a crystalline solid containing 6.61 grammes of ‘Ice’. And the police seized a mobile phone and cash of $110 from the defendant.
Under arrest and under caution at the scene, the defendant admitted trafficking the ‘Ice’ for another for a $800 reward, and the woman denied knowledge or involvement. In a subsequent video-recorded interview under caution, the defendant explained how he was approached by an unknown person to earn quick money by delivering ‘Ice’. He picked up the ‘Ice’ in question in Mong Kok and was instructed to wait at Nullah Road. Hence he drove the car there to wait and was arrested by the police. The defendant stated that his girlfriend was unaware of what he was doing. The defendant admitted that he was in possession of the ‘Ice’ seized in the car for the purpose of unlawful trafficking.
The Background and Mitigation
According to the antecedent statement, the defendant was born in August 1990 and is now 34 years of age. He has one previous conviction of theft in 2006 when he was 16 and was placed on probation for 18 months. The defendant claimed to receive education up to Form 5, and was working as a transportation worker at the time of arrest. The defendant is married, and he has an elder sister.
The defendant’s counsel Mr Yau, in his written submission, gave this court more information on the defendant. The defendant’s father is aged 60 and worked as a private chauffeur. His mother had passed away five years ago. He has an elder sister who is a housewife. The defendant’s grandfather stays in an old person’s home, and the grandmother is being taken care by the defendant’s family.
The defendant is not married. He and his fiancée had a son, who was born when the defendant was in remand. And the son is now one year old. His plan of marrying his fiancée was interrupted by his commission of the present offence. The defendant studied up to Form 3 level, and all along worked as a transportation worker, earning $18,000 to $20,000 per month.
I was informed by counsel that on 8 May this year, the defendant was convicted on his own plea another case of trafficking in a dangerous drug in the District Court and was sentenced to 34 months’ imprisonment. Counsel submitted that before the present offence, there was not yet any plan between him and his fiancée to get married. Then the defendant learned that he would soon be a father. He was in need of money to cater for the birth of his child and for the wedding. Due to COVID, the defendant was earning less and he used up most of his savings. He was unable to resist the temptation to earn quick money and he stupidly agreed to act as a courier to traffic dangerous drugs.
Counsel submitted the defendant frankly admitted this offence and co-operated with the police. As a result of committing the present offence, the defendant was not able to witness the birth of his own child. The defendant wished to be able to return to the society as soon as possible. Counsel referred this court to the case of Tam Yi Chun regarding the sentencing guidelines for the trafficking of ‘Ice’ and the six-step approach set out in Herry Jane Yusuph. And he submitted that a starting point of 8 years and 5 months is appropriate.
Counsel admitted that the defendant committed the present offence while on bail for another trafficking in a dangerous drug case, in which he was sentenced to 34 months in the District Court, and that amount to an aggravating factor, particularly when the facts of both cases were almost identical. Counsel also urged this court to increase the sentence for this ground to a low extent only, and counsel referred to the case of Leung Ting Fung in this respect.
Apart from the one-third discount for timely plea, counsel also relied on the same case as the case of Leung Ting Fung and submitted that in dealing with the defendant serving a sentence for another offence, this court should step back and take a global view of the total sentence in light of the criminal conduct.
The following is my consideration of the sentence. Now, trafficking in a dangerous drug is a serious offence. A person convicted on this offence on indictment is liable for life and a fine of $5,000,000. I will approach the sentencing according to the six-step approach laid down in the case of Herry Jane Yusuph.
So the first step is to identify the relevant guideline band applicable to the quantity concerned. So in the case of Tam Yi Chun, the Court of Appeal set down the sentencing guideline for the trafficking of ‘Ice’. The ‘Ice’ involved here is 36.04 grammes of a crystalline solid containing 35.65 grammes of ‘Ice’. That falls into the 10 to 70 grammes bracket, with a starting point of 7 to 11 years.
So the second step is to assess the role of the defendant and the culpability. The evidence disclosed showed that the defendant was a courier, being the lowest rank in the hierarchy of dangerous drugs trafficking.
The third step. As a courier, I am of the view that the defendant came to 8 years and 8 months within the band of 7 to 11 years.
Now, the fourth step. Whilst I will not take into account the previous conviction of theft when the defendant was 16 years old in my consideration of sentence, the fact that the defendant was on bail for another trafficking in dangerous drugs case when he committed the present offence is an aggravating factor. That was an aggravating factor, particularly when the defendant employed exactly the same way to traffic dangerous drugs. I am of the view that this warrants an increase of 4 months. So the enhanced starting point is therefore 9 years.
The fifth step is the mitigating factor. The only mitigating factor here is the defendant’s timely plea, so the defendant will get a full one-third discount. So for the present offence with the one-third discount, the 9 years’ sentence will become 6 years.
Now, I have to step back and look at the totality because the defendant is currently serving a sentence of 34 months. So this is the last step of the six steps. Now, I am of the view that a total sentence of 6 years and 9 months’ would properly reflect the criminality involved in both cases. So to achieve the result of a total sentence of 6 years and 9 months, which amounts to 81 months, I order that the defendant to be sentenced to 6 years’ imprisonment for this offence, and 47 months of this offence to run consecutively with the 34 months imposed by the District Court in DCCC 648/2023, then make a total of 81 months.