The Facts
At about 8:30 pm on 15 November 2020, police officers were on patrol inside a police vehicle when they spotted a private car parked on Cheung Sha Wan Road causing an obstruction to a nearby bus stop. A police officer instructed the driver to leave immediately using a loud hailer from the vehicle. This driver then executed an illegal U-turn into the adjacent lane in plain sight of the police officers in their vehicle. The police vehicle obviously immediately followed that private car.
They then found it parked nearby and at the same time saw the defendant approaching the vehicle and board the front passenger seat. The car was about to leave when it was intercepted by these police officers. The defendant was carrying recycle bags when she got out of the vehicle.
Her bags were searched and in one, the police found 6 plastic bags containing 30 plastic bags of cocaine inside a biscuit box along with 8 plastic bags containing the methamphetamine hydrochloride as well as 25 plastic bags containing ketamine.
In the same bag in a separate box, the police found 2 plastic bags containing 10 plastic bags of cocaine, 16 plastic bags containing methamphetamine hydrochloride, and 16 plastic bags containing ketamine. Nothing suspicious or illegal was found on the driver or in that private car.
Under caution, the defendant admitted she had been paid $400 to take or deliver the bag containing all those drugs to that vehicle.
In a subsequent video-recorded interview, she expanded on the circumstances of her offence and fully co-operated with the police. She explained who arranged for her to deliver goods for a financial reward and frankly told the police that she had done the same thing about five times in the past. A search of her home found nothing illegal.
It is agreed that the estimated street value of all the dangerous drugs seized was about $155,523.
The defendant admits and accepts that at the material time, she unlawfully trafficked in all those dangerous drugs seized.
The Defendant’s Background and Mitigation
The defendant is 62 years old, divorced, and had previously worked as a clerk and a worker on a construction site. At the time of her arrest, she was unable to earn enough to make a living and sustain herself because of the COVID pandemic.
The defendant is not a woman with a clear record but she has no previous or similar drug-related convictions. She was convicted of theft in 1991 and 2016. In 2014, she made a false report of the commission of an offence.
I have read and heard mitigation from Mr Yuen for the defendant who has said all he can say on her behalf. Her best mitigation is her plea at the earliest opportunity. I have had regard to all mitigation put forward, including the fact that her grandchild was born on the day of her arrest and she has never met him. I have also taken into account a letter written by Father John Wotherspoon.
Lastly, I have received and considered a letter of mitigation from the defendant herself. Contents of the letter expressed genuine remorse and a heartfelt plea for a reunited family. She has bridges to mend with her family and promises not to reoffend in the future.
Sentencing
I have considered the approach to the sentence of trafficking dangerous drugs as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I have considered the six-step sentencing approach set out in that authority. In this case, I accept and I am satisfied that the defendant was a courier, delivering the drugs from A to B for a paltry amount of money. Therefore, her sentence is to be determined by the relevant tariffs and the quantity of dangerous drugs involved.
I have also considered whether to take into account the fact that there are three types of drugs involved here which can be considered an aggravating factor which may mean an enhancement of sentence. However, I have looked at the quantity of each type of drug as well as the packaging and her role as a courier. I will not, under these circumstances, consider this an aggravating factor.
Mr Yuen submits and I agree that the combined approach in sentencing is preferred. Here, we have three types of drugs, a cocktail of drugs. In such a situation, a combined approach would usually be correct, preferred and producing the more realistic and fair sentence. In the combined approach, the court will look at the overall quantity of drugs rather than individual parcels and types. This is opposed to the individual approach of calculating the tariff for each type of drug based on the quantity and then adding those tariffs together.
I have been urged to adopt the approach of the conversion rate whereby I will take a single tariff for one of the types of drugs and here it will be ‘Ice’. Not only is the quantity of ‘Ice’ the most significant in this case but it can also be considered the most potent narcotic of the three. I have been referred to HKSAR v Wan Lau Mei [2014] 4 HKC 75 by the prosecution.
The tariffs for the drug ‘Ice’, methamphetamine hydrochloride, are set out in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. In that case, it was held that the sentence for trafficking between 70 to 300 grammes is 11 to 15 years’ imprisonment after trial. Here, we have 109.5 grammes of ‘Ice’, which would in itself attract a sentence of 11 years and 8 months’ imprisonment.
The tariffs for the drug ketamine are set out in the authority of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. In that case, it was held that the sentence for trafficking between 50 to 300 grammes is 6 to 9 years’ imprisonment after trial. Here, we have 87.25 grammes of ketamine. After trial, that would in itself attract a sentence of 6 years and 5 months’ imprisonment. However, in converting that amount to that of ‘Ice’, that would be equivalent to 8.62 grammes.
Tariffs for the drug cocaine follows the tariffs for trafficking in heroin, AG v Pedro Nel Rojas [1994] 1 HKC 342. For the present purposes, the tariffs in R v Lau Tak Ming [1990] 2 HKLR 370 says that trafficking in up to 10 grammes attracts a sentence of between 2 to 5 years’ imprisonment after trial. In the present case, for the 4.41 grammes of cocaine after trial, that would in itself attract a sentence of 3 years and 4 months’ imprisonment. However, in converting that amount to that of ‘Ice’, that would be equivalent to 0.81 grammes.
In adding all three quantities together, that is 109.5 grammes plus 8.62 grammes plus 0.81 grammes will equal 118.93 grammes of ‘Ice’. Applying the tariffs for the drug ‘Ice’ as set out above, the starting point after trial for this amount would be 11 years and 10 months’ imprisonment.
As I said above, the methodology of this combined approach is to first calculate the applicable sentence for the most serious drug, here ‘Ice’, and then make an upward adjustment to take into account the significant quantity of other drugs.
I have considered the three means of cross-checking whether the sentence would be manifestly excessive. I have considered the absurdity test, the ratio test and the conversion test or combined approach. I agree with counsel that this conversion test or combined approach is the most favourable starting point for the defendant in the circumstances.
Therefore, using the combined approach, I will take a starting point of 11 years and 10 months’ imprisonment. I will reduce the starting point by 1 month to 11 years and 9 months to reflect the contents of Father John Wotherspoon’s letter relating to this defendant, her assistance to him and her remorse.
Defendant, you indicated your plea at the earliest opportunity and for that the starting point will be reduced by one-third. That discount takes into account most mitigating factors available to a defendant facing such a serious offence such as a plea and remorse.
Accordingly, after that discount is applied, the resulting sentence which you shall serve will be one of 7 years and 10 months’ imprisonment. Can I ask, defendant, do you understand that sentence?
DEFENDANT: Understood.