The defendant, a Form 8 holder, pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and is committed to this court for sentence. He confirms his plea and agreement to the Summary of Facts before me today.
The particulars of offence say that he, on 1 April 2020, in a room of a flat in Sham Shui Po, Kowloon, unlawfully trafficked in: 12.4 grammes of a solid containing 7.26 grammes of cocaine and 15.69 grammes of a crystalline solid containing 10.24 grammes of methamphetamine hydrochloride (‘Ice’).
Facts
This was a run-of-the-mill type of “stop and search” case. At around 1618 hours on 1 April 2020, the defendant was intercepted as he was walking out of the flat in Sham Shui Po as particularised in the charge. He was then taken back to the room of the flat which he said he was staying for the purpose of a search.
Inside a shoulder bag in that room, the police found the cocaine as stated in the charge contained in 32 plastic bags and the ‘Ice’ as stated in the charge contained in 11 plastic bags. Besides, the police also found in the shoulder bag eight resealable plastic bags, cash of HK$20,000, one rental agreement in the defendant’s name, and the rental receipt and an agreement with International Social Service as well as a copy of the defendant’s recognisance and his passport.
Inside the cupboard of the kitchen, the police found an electronic scale, one glass bottle with two straws, one plastic bottle with a straw and 35 plastic resealable plastic bags. Under caution, the defendant said that the dangerous drugs seized belonged to him.
Antecedent
The defendant is now aged 39. He was born in Pakistan and is married with three children, respectively aged 12, 8, and 4. His family is living in Pakistan and he stays in Hong Kong as a Form 8 holder. He is said to have the habit of drug abuse. However, according to the Summary of Facts, his urine test yielded negative results for amphetamine and cocaine. Mr Bullett confirms that the defendant is not putting forward “partial self-consumption” as a mitigating factor.
As regards the defendant’s criminal record, I am told that he has a conviction on 11 August 2020 for trafficking and was sentenced to 22 months’ imprisonment. The present offence was committed whilst the defendant was on bail for that previous offence. But for the present case, the earliest day of release of the defendant for the previous offence would be 31 October 2021, which is about 5 months from today. The fact that he committed the present offence while he was on bail for the previous offence is an aggravating factor. On the other hand, starting from 11 August 2020 up to today, which is about 9½ months, he was detained not for the present case but for the previous offence so that this 9½ month-period would not be counted towards the sentence of the present offence (see section 67A, Criminal Procedure Ordinance, Cap 221). I would bear the sentence of the previous offence in mind when I come to totality.
Sentence
It is now well-established that for sentencing purpose in the absence of evidence to show that the defendant’s role was anything other than that of a courier or stall-keeper, the starting point would be calculated arithmetically based on the quantities of the dangerous drugs concerned (see HKSAR v Herry Jane Yusuph [2021] 1 HKC 458). Therefore, in the present case for sentencing purpose, I will treat the defendant as a courier or storekeeper.
Since there are two types of dangerous drugs involved in the present case, namely, cocaine and ‘Ice’, for reference purpose I will use the arithmetical starting point calculated according to the “absurdity test”, “conversion test” and “ratio test” as explained in HKSAR v Chan Yuk Leong.
Absurdity test
For the present case, the sentencing tariff for trafficking in cocaine follow those for trafficking in heroin as laid down in R v Lau Tak Ming (see AG v Rojas). According to Lau Tak Ming and by an arithmetical approach, trafficking in 7.26 grammes of cocaine narcotic would of itself carry a sentence of 50 months’ imprisonment.
For the present case, the applicable sentencing tariff for trafficking in ‘Ice’ can be found in HKSAR v Tam Yi Chun which says trafficking between 10 and 70 grammes of ‘Ice’ narcotic carries a sentence of 7 to 11 years. Therefore, by an arithmetical approach, trafficking in 10.24 grammes of Ice narcotic would, of itself, carry a sentence of 84 months’ imprisonment.
Absurdity test
According to Lau Tak Ming, trafficking in between 10 and 50 grammes of heroin narcotic carries a sentence of 5 to 8 years’ imprisonment. The total quantities of the two types of narcotic combined is 17.50 grammes. Therefore, if all the dangerous drugs were cocaine, then the arithmetical starting point for the charge would be 67 months.
On the other hand, if all were ‘Ice’, then according to Tam Yi Chun, the arithmetical starting point would be 90 months’ imprisonment.
Conversion test
In the present case, for the purpose of conversion, the base drug should be highest both in terms of quantity and potency (see HKSAR v Wan Lau Mei [2014] 4 HKC 75 and HKSAR v Islam S M Majharul, CACC 64/2019).
For sentencing purpose, 7.26 grammes of cocaine narcotic is equal to about 2.9 grammes of ‘Ice’. Trafficking in 2.9 plus 10.24 equal 13.14 grammes of Ice narcotic would attract a sentence of about 86 months’ imprisonment.
Ratio test
By weight, 10.24 grammes of ‘Ice’ constitutes 58.5 percent of the total 17.5 grammes and 7.26 grammes of cocaine constitutes 41.5 per cent of the total, therefore the arithmetical starting point by the “ratio test” would be 67 months times 41.5 per cent plus 90 months times 58.5 per cent equal 80 months. However, this result of 80 months, I note, is even lower than the sentence of trafficking in just 10.24 grammes of Ice narcotics.
Having applied the three cross-check tests, looking the matter in the round, I adopt 86 months’ imprisonment as the arithmetical starting point of the charge.
Aggravating factors
There are three aggravating factors in the present case.
Firstly, it is established that the ability of the trafficker to cater to a wider market by trafficking in a multiplicity of drugs should be considered (see for example the case authority referred to in HKSAR v Yim Hung Lui Ricky, CACC 266/2011 at paragraph 11 of that judgment). For this factor, I enhance the arithmetical starting point by 4 months.
Secondly, although Mr Bullett informs me had applied to withdraw his asylum claim in 2019, the fact remains that the defendant was still a Form 8 holder at the time when he committed the present offence. The commission of the offence by the defendant is a betrayal of the trust placed in him by the people of Hong Kong and that betrayal impacts on the lives of its citizens and the reputation of this city. For this, I add another 6 months to the sentence (see HKSAR v Ali Saif [2018] 6 HKC 19 and HKSAR v Islam S M Majharul referred to above).
Thirdly, as I have said, the fact that the present offence was committed whilst the defendant was on bail for his previous offence is an aggravating factor.
On the other hand, the defendant has been in custody for the previous offence for about 9½ months and that period will not be taken into account for the purpose of the present sentence. On this basis, Mr Bullett urged me not to enhance the defendant’s sentence because of the totality principle. As to this, I agree. Therefore, before considering any mitigating factors, the overall starting point is 84 plus 4 plus 6 equal 96 months.
Mitigation
Mr Bullett has said all that can be said on behalf of the defendant in mitigation and he pragmatically agrees that the only factor which may reduce the defendant’s sentence is his timely plea. After deducting the customary one-third for plea, the sentence is reduced to 64 months’ imprisonment.
I therefore sentence the defendant to 64 months’ imprisonment.