COURT: The defendant pleaded guilty before a magistrate to one charge of trafficking in dangerous drugs and one charge of failure to provide specimen of blood and was committed before me for sentence. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, the type and quantity of the dangerous drugs involved, personal background of the defendant, and mitigation put forward on his behalf by learned defence counsel. I have also had regard to the sentencing approach as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph, CACC 93/2019 and HKSAR v Islam S M Majharul, CACC 67/2019.
The facts of the case may be summarised as follows.
On 4 June 2022, as the defendant was driving a car in an unstable manner, police officers stopped his car. Rapid oral fluid test conducted on him showed a positive result of ketamine. Officers also found dangerous drugs in various parts of the car. The drugs were 55.15 grammes of a solid containing 43.35 grammes of cocaine and 58.65 grammes of a solid containing 41.28 grammes of ketamine.
The defendant was then taken to a police station. There he refused to provide a blood or urine specimen as requested by an officer pursuant to the law.
In a subsequent video-recorded interview, the defendant admitted under caution that the drugs found belonged to him and were for the purpose of trafficking.
I was told that the defendant is now 37 years of age. He is married. He received education up to Form 3 and worked as a driver. He does not have a clear record. He was convicted of the offence of possession of dangerous drug in 2012 and 2015. He had also been convicted for two offences related to driving in 2009. In 2021, he was convicted for making off without payment. He also has a poor traffic record.
Learned counsel for the defence, Mr Ernest Yuen, urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity and is remorseful. He asked the court to accept that the defendant was only a courier to deliver drug on instruction. He would only receive a few thousand dollars as reward.
Mr Yuen also asked the court to take into account that the defendant was co-operative to the authorities in the case. Further, Mr Yuen asked the court to accept that a small quantity of the drugs found was for the defendant’s own consumption.
The defendant wrote a letter in which he expressed remorse. He also stated that he was the main breadwinner of the family. As a result of the pandemic, his income dropped and later he even lost his job. In the circumstances of heavy financial stress, a friend who had been lending money to him lured him into engaging in this unlawful exercise. Upon reflection, he is remorseful and prepared to turn a new leaf.
Having considered the whole circumstances of the case, I see no reason to depart from the tariff for each type of the drugs. I consider sentence on the basis, as Mr Yuen submitted, that the defendant was a courier.
Charge 1 involved 43.35 grammes of cocaine and 41.28 grammes of ketamine. For trafficking in cocaine, it was held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69, that the guideline for sentence in R v Lau Tak Ming [1990] 2 HKLR 370 are applicable to cases of trafficking in cocaine. In Lau Tak Ming, the Court of Appeal suggested that for sentencing in heroin of a quantity between 10 to 50 grammes, a sentence of 5 to 8 years should be considered. For trafficking in ketamine, as held in SJ v Hii Siew Cheng [2009] 1 HKLRD 1, if the narcotic content is 10 to 50 grammes, a sentence of 4 to 6 years should be considered.
Two drugs were involved in this case. In consideration, I follow the approach as stated by the Court of Appeal in HKSAR v Islam S M Majharul[2020] 3 HKLRD 146. The quantity respectively of both drugs was similar, and between them cocaine is more potent in its harmful effect. Applying the said tariff, taking into account mostly the quantity of the drugs, the cocaine by itself attracts a starting point of about 7 years 5 months and the ketamine about 5½ years.
In deciding the notional sentence after trial for Charge 1, I adopt the combined approach and check whether the notional sentence is fair and appropriate by testing it against the absurdity test, the conversion test, and the ratio test.
In consideration, I also bear in mind that trafficking in different types of drugs presented two possible aggravating features of a wider market and the effect on users of combination of dangerous drugs. Having assessed the impact of these aggravating features in the circumstances of the present case, I am of the view that the sentence should be enhanced by about 3 months for this factor.
The previous convictions of the defendant were for offences of other nature and in my judgment have no negative impact on the sentences for Charge 1. All in all, for Charge 1, I adopt 8 years and 3 months as the notional sentence after trial.
Mr Yuen informed the court that it was the intention of the defendant that a small proportion of the drug was for his own consumption. In this connection, I have had regard to the Court of Appeal cases of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, and HKSAR v Tam Ling Yuen, CACC 159/2015.
All the dangerous drugs seized were found inside the car the defendant was driving. There is evidence that at that time he had consumed drugs. The assertion is only that a small proportion of the drug was intended for own consumption. Even if that is accepted, I have to take into account that the offence of possession of dangerous drug itself carries a custodial imprisonment. Besides, in the circumstances of the present case, my assessment of the latent risk is that it was very high.
The assertion is not that the defendant intended to keep a substantial quantity of the drugs for own consumption. Bearing that in mind, even if the assertion is accepted, taking the whole of the relevant circumstances into account, I do not think the sentence should be adjusted in the defendant’s favour for this reason.
As regards Charge 2, I agree to Mr Yuen that in the circumstances of the present case, a short custodial sentence is sufficient. I adopt 3 months as the notional sentence after trial. There are other relevant statutory provisions on the sentence which I will deal with later.
The defendant pleaded guilty before a magistrate and for this alone he is entitled to a one-third discount for each charge. Having considered the whole circumstances and having regard to submission of Mr Yuen and all the information about the defendant, in my judgment, the defendant is entitled to a total discount of about 38 per cent for each charge.
Defendant, for this reasons, I impose the following sentences on you. Charge 1, an immediate imprisonment term of 5 years and 1 month. Charge 2, an immediate imprisonment term of 55 days. In the circumstances of this case and having regard to totality, I consider it appropriate to order the two sentences to run concurrently.
You therefore are to serve a total sentence of 5 years and 1 month for the two charges.
For Charge 2, pursuant to statutory provisions, on top of the imprisonment sentence, I also make the following order. You will be disqualified for driving for a period of 5 years and until you have attended and completed a driving improvement course at your own costs. It means that you will be disqualified for driving for at least 5 years and only until you have thereafter attended and completed a driving improvement course, you will not be allowed to drive again.