COURT: The defendant pleaded guilty before a magistrate to two charges of trafficking in dangerous drugs and was committed before me for sentence.
In sentencing I have considered the whole circumstances of the case including its nature and facts, in particular 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 14 April 2022, police officers stopped the defendant after he had left a room in a factory building. Upon search, 41 bags containing a total of 11.11 grammes of a solid containing 7.56 grammes of cocaine were found in his underpants.
Under caution, the defendant claimed that this batch of drugs were for his own consumption. Officers then brought the defendant back to the room from which he came out. The party gained entry into the room with the passwords provided by the defendant. There, more dangerous drugs were found, they were:
(1) 279.39 grammes of a solid containing 229.17 grammes of ketamine;
(2) 26.4 grammes of a solid containing 18.61 grammes of cocaine; and
(3) 57.8 grammes of a solid containing 7.43 grammes of ‘Ice’.
In a subsequent video-recorded interview, the defendant made statements under caution including the following:
(1) He knew the drugs found on him were cocaine. He bought it around two weeks ago and he was to bring it home.
(2) The room was rented by him for playing video games.
(3) The drugs inside the room were purchased by him a few weeks ago; and
(4) he took drugs inside the room whenever he felt stressed.
I was told that the defendant is now 22 years old. He is single and has been living with his parents. He was studying Form 6. At the time of the offence, he was preparing for the public examination of DSE which he was about to take.
He committed this offence when he was on bail after he had been on a previous occasion, arrested for possession of dangerous drugs. He was on 15 May 2022, sentenced to rehabilitation centre for that case.
Learned counsel for the defence, Mr Newman Wong, urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity. He also asked the court to take into account that the defendant was at the age of 20 years when he committed the offences and this was the first time he has been convicted of the offence of trafficking in dangerous drugs.
The defence produced a letter written by the defendant, in which he expressed remorse. He started bible study and completed a course. He promised to rehabilitate himself and turn a new leaf.
Despite at the time of arrest, the defendant mentioned that the drugs were for his own consumption, this assertion was not repeated today.
Mr Wong also submitted that despite the present case was committed while the defendant was on bail for the other case, as the sentence for the earlier possession case has taken into account that further offence was committed, the aggravating factor can be ignored for sentencing purpose in the present case.
Taking into account what Mr Wong said on behalf of the defendant and the special circumstances of the case, I accept that enhancement of the sentences is not necessary even though the present case was committed while the defendant was on bail.
Having considered the whole circumstances of the present case, I see no reason to depart from the tariff for each type of the drugs. I consider the sentence on the basis that the role of the defendant was low in the hierarchy, akin to that of a courier.
For trafficking in cocaine, if the narcotic content is less than 10 grammes, according to the case R v Lau Tak Ming [1990] 2 HKLR 370, an imprisonment term of 2 to 5 years should be considered. If the content is 10 to 50 grammes, a sentence of 5 to 8 years should be considered.
For trafficking in ‘Ice’, according to HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, if the narcotic content is up to 10 grammes, an imprisonment term of 3 to 7 years should be considered.
For trafficking in ketamine, according to SJ v Hii Siew Cheng [2009] 1 HKLRD 1, if the narcotic content is 50 to 300 grammes, an imprisonment term of 6 to 9 years should be considered.
For Charge 1, which involves 7.56 grammes of cocaine, having regards to Lau Tak Ming, I adopt 4 years as the notional sentence after trial.
As regards to Charge 2, multiple drugs were involved. 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 of ketamine was most significant despite its
potency and harm are less than the other two drugs. There were 229 grammes of ketamine, it by itself attracts a starting point of about 8 years and 1 month.
Bearing this in mind, I adopt the combined approach and check whether the notional sentence after trial to adopt is fair and appropriate by testing it against the absurdity test, the conversion test and the ratio test, bearing in mind the risk of crushing effect on this young man.
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.
The impact of these aggravating feature was, in this case, quite substantial in the light of the variety of drugs involved. I note that the quantity of the ‘Ice’ was small but that of the cocaine cannot be said to be insignificant.
In all the circumstances of the present case, beware of the risk of excessive enhancement, I am of the view that the sentence for Charge 2 should be enhanced by about 6 months for this factor.
In the circumstances taking into account that three drugs were involved and the quantity of the drugs, for Charge 2, I adopt 9 years as the notional sentence after trial.
The defendant pleaded guilty before a magistrate and for this he is entitled to a one-third discount. Having considered the whole circumstances, including what Mr Wong mitigated on the defendant’s behalf, I am of the view that one-third is the extent of discount the defendant is entitled to for each charge.
The defendant was convicted for two charges. In the circumstances of this case, the ultimate sentence should be decided by reference to the total quantity involved. The implication is that I should assess the effect of the 7.56 grammes of cocaine, which is the subject matter of Charge 1, on the aggregate sentence.
Having regard to Islam S M Majharul, in all the circumstances of the present case, I am of the view that the effect is not so significant that a consecutive sentence should be ordered.
Defendant, for these reasons I have said, I impose on you the following sentences. Charge 1, an immediate imprisonment term of 2 years and 8 months. Charge 2, an
immediate imprisonment term of 6 years. I order the sentences for the two charges to run concurrently. You are to serve a total sentence of 6 years for the two charges.