On 9 February 2021, the defendant was intercepted by police officers at an unnamed road in the New Territories. The police officers searched the defendant and found transparent resealable plastic bags containing a total of 137.6 grammes of a crystalline solid containing 135.1 grammes of ‘Ice’. Its street value was approximately HK$81,184.
The defendant is currently 45 years old and was born in Hong Kong. I have been informed that the defendant was able to make a living by selling second-hand cars after his last release from prison in 2019.
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I therefore follow the six-step sentencing approach set out in Yusuph. The first step is to identify the relevant guideline band or bracket applicable to the quantity of the drug concerned. Following HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, for quantities of 70 grammes to 300 grammes of ‘Ice’, the sentencing band is 11 to 15 years’ imprisonment.
The second step is to assess the defendant’s role and culpability based upon the evidence. On the evidence, there is little to suggest that the defendant had any significant role beyond an ordinary courier or storekeeper. I assess his culpability accordingly.
The third step of the sentencing exercise is to identify where in the relevant band the defendant comes. This would yield a starting point for the sentence. In respect of the defendant, trafficking in 135.1 grammes of ‘Ice’, a mathematically calculated place within the sentencing band would be 12 years and 1 month’s imprisonment after rounding down. I cannot see any basis for departing from the mathematically calculated place within the relevant band.
The fourth step requires me to consider whether there are any aggravating factors which might require me to enhance this starting point. The defendant had some 20 previous convictions with three for trafficking in dangerous drugs and one for possession of a dangerous drug. His first two trafficking convictions arose out of the same case in 1996. His third trafficking offence was in 2014 when he was sentenced to 8 years’ imprisonment. That last trafficking offence was also related to trafficking in ‘Ice’, and he was released from prison in June 2019.
As mentioned above, the defendant attempted to make a living in selling second-hand cars since his release, but he reverted back to old habits and committed the present offence in February 2021, about one and a half years after his release from prison.
It is well established that the existence of a prior conviction for drug trafficking is an aggravating factor for the present purposes. In HKSAR v Chung Ping Kun [2014] 6 HKC 106 at paragraph 9, which was applied in HKSAR v Lau Tsz Ho [2015] 1 HKC 491, the Court of Appeal suggested as a broad guideline the level of enhancement for drugs such as ‘Ice’. Applying these guidelines to the present case concerning drugs up to 250 grammes, the appropriate enhancement is, in my view, 4 months. This brings me to a notional sentence of 12 years and 5 months’ imprisonment.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence, bearing in mind that personal circumstances for this offence generally count for little. I have borne in mind the observations of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437 at paragraph 32 and Yusuph at paragraph 44 where the Court of Appeal stressed the seriousness of drug trafficking and the problems that it brings to families and communities. Accordingly, the defendant’s personal circumstances are rarely a mitigating factor. In light of the aforesaid principles, the defendant’s personal circumstances do not constitute mitigating factors for the purposes of the fifth step.
The main mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount of the starting point. Applying that discount will bring the defendant’s sentence down to 8 years 3 months’ imprisonment.
Another component of the submission in mitigation is the assertion that 5 grammes or 3.7 per cent of the total quantity of the ‘Ice’ seized were for the defendant’s own consumption. There is reasonable circumstantial support for the defendant being addicted to ‘Ice’ as there is evidence that the defendant had amphetamine in his urine three days after his arrest. I am prepared to accept that a small proportion of the drugs was for self-consumption.
It is clear that the proportion of the ‘Ice’ for self-consumption cannot be regarded as a significant proportion of the ‘Ice’ in which the defendant unlawfully trafficked. However, it is nonetheless within the judge’s discretion whether to give the defendant any reduction in sentence and the extent of that reduction. I will further reduce the defendant’s sentence by 2 months to reflect this factor.
In the circumstances of the present case, no other additional considerations are relevant insofar as the sixth step is concerned.
Yes, defendant, please stand up. I sentence you to a term of 8 years and 1 month’s imprisonment.