The facts of the case may be summarised as follows. The defendant parked her private car outside a public housing estate after having driven it slowly in the area for about 20 minutes. Police officers approached her and searched the car. Dangerous drugs were found in bags placed near the pedal and in the compartment below the steering wheel. The defendant was arrested.
Under caution, she admitted to be helping another person to traffic in dangerous drugs to earn quick money. In a subsequent video-recorded interview, she said she involved in the offence as she was in heavy debt. The dangerous drugs found in her car were collected by her on the day and the previous day upon instruction of another person.
I was told that the defendant is 29 years of age. She completed Form 5 education and had worked as a traffic assistant at a tunnel. She was unemployed at the time of the offence. She is single and had been living alone. She did not have any criminal record before.
The dangerous drugs she had trafficked in were 239.53 grammes of a crystalline solid containing 211.67 grammes of ‘Ice’, 9.69(9.09?) grammes of a crystalline solid containing 7.88 grammes of ketamine, 63.33 grammes of a solid containing 51.32 grammes of ketamine, 6.48 grammes of a solid containing 5.44 grammes of cocaine and 70 tablets containing 0.07 grammes of phenazepam.
In mitigation, learned counsel for the defence, Mr C K Leung, stressed that the defendant pleaded guilty at the earliest opportunity, that she had a clear record before, she is now in deep remorse, and the chance of her reoffending is low. Mr Leung also asked the court to accept that the role of the defendant was only that of a courier.
The defence also produced a letter from the defendant in which she expressed remorse. There are also letters from her sister and a friend of the defendant as well as from a pastor. All said the defendant is a person of good nature and are satisfied that she is now full of remorse.
The court was also told that the defendant committed the offence in financial difficulties as she had been cheated by her ex-boyfriend. The court was also told that the defendant had been an important breadwinner of the family but when she lost her job, it was difficult for her to get another employment at the time of the social unrest.
The defendant trafficked in four types of dangerous drugs, namely ‘Ice’, ketamine, cocaine and phenazepam. In this case, ‘Ice’ was the prominent drug, both in terms of its harm and quantity. There were 211.67 grammes of ‘Ice’. The Court of Appeal held in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 that in the case of trafficking in ‘Ice’ where the narcotic content was between 70 to 300 grammes, an imprisonment term of 11 to 15 years should be considered. There was also 59.2 grammes of ketamine as well as a smaller quantity of cocaine, 5.54 grammes. The quantity of the fourth type of drug, phenazepam, was insignificant for the purpose of sentencing.
In SJ v Hii Siew Cheng [2009] 1 HKLRD 1, it was held that 6 to 9 years’ imprisonment should be considered if the narcotic content is 50 to 300 grammes. In AG v Pedro Nel Rojas [1994] 2 HKCLR 69, the Court of Appeal held that the sentencing guidelines for trafficking in heroin are applicable to cases of trafficking in cocaine. Following R v Lau Tak Ming [1990] 2 HKLR 370, a sentence of 2 to 5 years’ imprisonment should be considered if the narcotic content is less than 10 grammes. I see no reason in the present case to depart from the tariffs.
As the case involved more than one type of drug, I follow the approach as stated by the Court of Appeal in HKSAR v Islam S M Majharul [2020] 3 HKLRD 146. I have also had regard to the Court of Appeal cases such as HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Yau Ka Ming, CACC 144/2013, HKSAR v Chan Yuk Leong, CACC 318/2013, and HKSAR v Cheung Wai Man [2019] 1 HKLRD 817.
I adopt the combined approach and check whether the starting point to be adopted is fair and appropriate by testing it against the absurdity test, the conversion test and the ratio test. In the course of the exercise, I have had regard to the two possible aggravating features of a wider market and the effect on users of combination of dangerous drugs. I remind myself that in determining an enhancement to the sentence for any aggravating factor, I should ensure the followings: One, the original starting point should be proportionate to the actual sentence; the degree of enhancement should be in reasonable proportion to the basic sentence; and three, the total ultimate sentence should not be excessive.
Having considered all the circumstances, the range of sentence I just mentioned about ‘Ice’ is applicable. I adopt a starting point of 14 years and 3 months which includes an enhancement of around 8 months for the said aggravating factors.
The defendant pleaded guilty before a magistrate and for this she is entitled to a one-third discount. Having considered everything said on behalf of the defendant, I am of the view that this is the extent of discount the defendant is entitled to in the present case.
The defendant, please stand up. By reason of the matters aforesaid, I sentence you to an imprisonment term of 9½ years.