Facts Admitted
The facts admitted by both defendants are straightforward. When both defendants returned to this hotel room, Room 1104, they were intercepted by the police and that room was searched by police officers with a valid search warrant.
Another person and the 2nd defendant booked that hotel room for between 31 July and 3 August 2020. In the room, the police found six bags on a table containing the methamphetamine hydrochloride of this charge. There was also on the same table an electronic scale and a large amount of transparent resealable plastic bags very similar to the ones containing drugs already. The defendants agree that the estimated street value of the drugs at the material time was around $8,889.
CCTV footage of the hotel showed both defendants between 31 July and 3 August entering and leaving the room on many occasions. From time to time, different unknown persons would enter the room for short periods of time. Both defendants elected to remain silent after their arrest and in subsequent video-recorded interviews. Now, both admit that they jointly trafficked the drugs found in the room on the material day.
Mitigation
The 1st defendant is now 46 years old, married with one child diagnosed with autism. At the time of his arrest, he was a licensed hawker, earning approximately $10,000 a month. He has no previous criminal convictions. Counsel has said all that can be said on his behalf in mitigation. It is submitted that financial problems arose which led to the commission of this offence. The 1st defendant had to make money to support his family and turned to trafficking in dangerous drugs.
The 2nd defendant is now 35 years old, single and was unemployed at the time of this offence. Like the 1st defendant, she turned to trafficking in dangerous drugs to support herself. She has one previous conviction. In May 2017, she was sentenced to 4 years and 8 months’ imprisonment for trafficking in dangerous drugs. Again, Counsel has said all that can be said on her behalf in mitigation.
There was a submission that she has a long history of abusing dangerous drugs, but that is not borne out by her criminal record. There has been no hearing prior to sentence to support a submission that a small portion of the dangerous drugs was for her own self-consumption. Counsel for the defendant at the same time recognises that a portion of drugs here claimed for self-consumption falls short of a significant proportion of the drugs that is required before the court should or would consider exercising its discretion to reduce the starting point to reflect this factor.
Trafficking Guidelines
The sentencing guidelines is ‘Ice’ is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, and the starting point for trafficking between 10 to 70 grammes of ‘Ice’ is 7 to 10 years’ imprisonment. Therefore, trafficking in 14.86 grammes of ‘Ice’ in this case would mathematically attract a starting point of 7 years and 4 months’ imprisonment.
I have considered the recent Court of Appeal of HKSAR v Herry Jane Yusuph, CACC 93/2019, and the six-step approach in sentencing drug trafficking offences. I accept the submission that these defendants were storekeepers of what appears to have been a small to mid-size operation, but it would also seem they were storekeepers who supplied customers who came to them in a rented hotel room. They were not only mere couriers or drug mules delivering drugs from A to B or just storekeepers. Nevertheless, considering the facts, I do intend to take mathematical approach to a starting point.
Having considered all mitigation, facts of the case and the tariff guidelines as well as the latest sentencing approach, I will take a starting point of 7 years and 3 months’ imprisonment.
I see no other mitigation of weight or substance to consider any further discount other than that for their pleas. There is no evidence that a significant proportion of the drugs was for the self-consumption of the 2nd defendant and the submission does not merit an additional discount.
Both defendants pleaded guilty at the earliest opportunity and are entitled to the full one-third discount. I have also taken into consideration the sixth step of the Herry Jane Yusuph authority.
After that discount is applied, I sentence both defendants to 4 years and 10 months’ imprisonment.