The facts of the case may be summarised as follows: The defendant was intercepted outside a public housing building. A search on him revealed nothing illegal. He was then escorted to a flat in that building. Search of the flat revealed the dangerous drugs in question. Under caution, the defendant said he sold dangerous drugs to others to earn quick money as he had lost his job recently.
In a subsequent video-recorded interview, he said the dangerous drugs were given to him by a casual friend known to him as Siu Keung who offered to help him when he came to know that he had been unemployed. He was promised a reward for doing so.
I was told that the defendant is now 40 years of age. He is married just several months prior to his arrest. He had finished secondary education and had worked as a bar manager. He did not have any previous criminal conviction record.
In mitigation, learned counsel for the defence, Mr Boyton, stressed that the defendant is a man with previous clear record and he pleaded guilty at the earliest opportunity. He told the court that the defendant did not know the exact value of the drugs involved. He also asked the court to assess the possible crushing effect of the sentence in the light of the age of the defendant and also that he has been recently married. The family is supportive and some members are in court to show support.
In the present case, the defendant has trafficked in two types of dangerous drugs. ‘Ice’ was obviously the more prominent drug, both in terms of its harm and quantity. There were 1,460.82 grammes of a crystalline solid containing 1,445.65 grammes of ‘Ice’. The other drug was what is commonly known as ‘Ecstasy’. There were 89 tablets having a narcotic content of 16.73 grammes.
The Court of Appeal held in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 that in a case of trafficking in ‘Ice’ where the narcotic content exceeds 600 grammes, the tariff in HKSAR v Abdallah [2009] 2 HKLRD 437 is applicable. In Abdallah, it was held that if the narcotic content is between 4,000 and 15,000 grammes, an imprisonment term of 26 to 30 years should be considered. For ‘Ecstasy’, according to 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’ imprisonment should be considered. I see no reason in the present case to depart from the tariffs.
I consider sentence on the basis that the role of the defendant was at the low end of the trafficking hierarchy. As the case involved two types of drugs, I follow the approach as stated by the Court of Appeal in HKSAR v Islam S M Majharul [2020] 3 HKLRD 146.
I have also had regard to the Court of Appeal cases such as HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Yau Ka Ming, CACC 144/2013, HKSAR v Chan Yuk Leong, CACC 318/2013, and HKSAR v Cheung Wai Man [2019] 1 HKLRD 817. I adopt the combined approach and check whether the starting point to be adopted is fair and appropriate by testing it against the absurdity test, the conversion test and the ratio test.
I have also had regard to the two possible aggravating features of a wider market and the effect on users of combination of dangerous drugs. I am duty-bound to consider whether or not to enhance the sentence for these reasons. In consideration, I bear in mind submission of Mr Boyton. I also remind myself that in determining an enhancement to a sentence for any aggravating factor, I should ensure that the original starting point should be proportionate to the actual sentence. The degree of enhancement should be in reasonable proportion to the basic sentence and the total ultimate sentence should not be excessive.
In all the circumstances, having regard to the tariff which is 23 to 26 years for this amount of ‘Ice’, I adopt a notional sentence after trial of 23½ years which includes an enhancement of around 3 months for the said aggravating factors.
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 is ably said by learned counsel on behalf of the defendant, having regard to the sentencing approach as stated by the Court of Appeal in HKSAR v Herry Jane Yusuph, in my judgment, this is the extent of discount the defendant is entitled to in the present case.
So, defendant, please stand up. By reason of the matters aforesaid, I sentence you to the following imprisonment term which is 15 years and 8 months.