COURT: The defendant pleaded guilty before a magistrate to the following charges and was committed before me for sentence. Charge 1, trafficking in dangerous drugs, Charge 2 possession of an identity card relating to another person. And Charge 3, driving a motor vehicle with concentration of illicit drugs. 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 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 as well as the sentencing tariff cases.
The facts of the case may be summarised as follows.
The case took place on 18 April 2021. The defendant was sitting on the driver’s seat of a car approached by police officers. A bag which later confirmed to contain dangerous drug was noticed in the storage space of the car door. Upon further search of the car, more drugs were found at various parts of the car. A bucket containing traces of ‘Ice’ was found inside the seatbelt pocket. The dangerous drugs found inside the car were a total of 78 grammes of a crystalline solid containing 77.9 grammes of ‘Ice’, 9.43 grammes of a powder containing 7.87 grammes of ketamine and 4.41 grammes of a solid containing 3.84 grammes of cocaine. Also found was an identity card not in the name of the defendant.
SVT and ROFT test conducted on the defendant yielded a positive result for ‘Ice’. Later DNA test confirmed traces of ‘Ice’ in the blood of the defendant.
In a subsequent video-recorded interview, the defendant made statements including the following:
(1) He had been asked by an unknown man to pick up the car for drug trafficking.
(2) He was told that there were ‘Ice’, ketamine, and cocaine in the car for delivery.
(3) He would be contacted by recipients of the drugs regarding the locations and methods of transactions.
(4) He picked up the identity card on a taxi and he forgot to report the same to the police.
(5) He knew he was disqualified from driving but he decided to do so to make money.
(6) Prior to picking up the car, he smoked ‘Ice’ at home.
I was told that the defendant is 50 years of age. He is single. He received education up to Secondary 3 and had worked as a driver. He does not have a clear record. His first conviction was in 1999, for a charge of AOABH, he was fined. In 2011 and 2016 respectively, he was convicted of trafficking in dangerous drugs. In 2021, he was convicted of possession of dangerous drugs. He has also been convicted of quite a few offences relating to driving.
Learned counsel for the defence, Mr Victor Lee, urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity and is remorseful. He asked the court to accept that the role of the defendant in the trafficking exercise was that of a courier.
As regards the offence in relation to the identity card, Mr Lee asked the court to note that the defendant is a Hong Kong permanent resident and he had no intention and no need, to use the identity card to find jobs. Mr Lee also stressed that when the defendant was intercepted by the police, he did not use and did not attempt to use the document, thus indicating that the defendant was not possessing the identity card to conceal his identity.
As regards the driving offence, Mr Lee asked the court to note that only traces of drugs were found in the blood of the defendant and despite having taken drug, he did not drive the car without proper control.
In the present case, the most serious offence is that of trafficking of dangerous drugs. It involved ‘Ice’, ketamine and cocaine. In all the circumstances of the case, I see no reason to depart from the tariff for each type of drugs. I consider sentence on the basis, as Mr Lee submitted, that the defendant was a courier of the drugs. For trafficking in ‘Ice’, according to HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, if the narcotic content is between 70 and 300 grammes, an immediate term of imprisonment of 11 to 15 years should be considered.
For trafficking in ketamine as held in SJ v Hii Siew Cheng [2009] 1 HKLRD 1, if the narcotic content is 1 to 10 grammes, a sentence of 2 to 4 years should be considered. For trafficking in cocaine, it was held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69, that the guideline for sentence in R v Lau Tak Ming [1990] 2 HKLR 370 are applicable to cases of trafficking in cocaine. In Lau Tak Ming, the Court of Appeal held that for sentencing in heroin of a quantity up to 10 grammes, a sentence of 2 to 5 years should be considered.
Three drugs were involved in this case. In consideration, I follow the approach as stated by the Court of Appeal in HKSAR v Islam S M Majharul [2020] 3 HKLRD 146. Amongst the drugs, ‘Ice’ was obviously the most prominent both in terms of its potency and quantity. There were 77.9 grammes of ‘Ice’. Applying the said tariff, taking into account the quantity alone, a starting point of about 11 years and 1 month is called for.
As three types of drugs were involved in Charge 1, in deciding the notional sentence after trial, I adopt a combined approach and check whether the notional sentence to adopt is fair and appropriate by testing it against the absurdity test, the conversion test, and the ratio test.
There were only 3.84 grammes of cocaine and 7.87 grammes of ketamine. In my judgment, the effect on sentence of the additional quantity is insignificant. However, I have to take into account 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.
In consideration, I bear in mind that the quantity of ‘Ice’ was overwhelming in proportion and the quantity of the other two drugs was small. Having assessed the impact of these aggravating features in the circumstances of the present case, I am of the view that the sentence should be enhanced by about 3 months for this factor.
There were two previous convictions of the defendant of the offence of trafficking in dangerous drugs. These convictions were not recent and yet not long before. In the circumstance, beware of the risk of excessive enhancement, I am of the view that the sentence for this charge should be enhanced further by another 2 months.
Having considered the whole of the relevant circumstances, for Charge 1, I adopt 11½ years as the notional sentence after trial.
As regards Charge 2, I note that the defendant is a Hong Kong permanent resident and that there is no allegation that he had used or tried to use the identity card. Taking into account all the relevant circumstances, having regard to HKSAR v Li Chang Li, [2004-2005] HKCLRT 193 and SJ v Wong Che Ping [2020] 5 HKLRD 220, as well as what Mr Lee said on behalf of the defendant, I adopt 18 months as the notional sentence after trial.
For Charge 3, I am of the view that despite the relatively low level of drug detected, only an immediate imprisonment term is appropriate and sufficient to reflect the degree of culpability in the circumstances of the present case. I adopt 3 months as the notional sentence after trial. In addition, the Road Traffic Ordinance requires me to impose further order, which I will deal with later.
The defendant pleaded guilty before a magistrate and for this he is entitled to a one-third discount for each charge. Having considered the whole circumstances and having regard to submission of Mr Lee, I am of the view that one-third is the extent of discount the defendant is entitled to in this case.
The defendant committed three offences at the same time. I apply the sentencing principle as laid down in the case of HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690, bearing in mind the totality principle. In the circumstances of this case, despite the three offences were committed at the same time, I am of the view that by committing each of the offences in Charge 2 and Charge 3, the defendant incurred a distinct and additional culpability. In my judgment, an additional imprisonment term on top of the sentence for Charge 1 is warranted.
Defendant, for the reasons I have said, I impose the following sentences on you. Charge 1, an immediate imprisonment term of 7 years and 8 months. Charge 2, an immediate imprisonment term of 1 year. Charge 3, an immediate imprisonment term of 2 months and disqualification from driving for 3 years and at your own costs attend and complete the driving improvement course.
As far as the imprisonment terms are concerned, I order the sentences of Charge 2 and Charge 3 to run concurrently, with 7 months of the aggregate sentence for Charges 2 and 3 to run consecutively to that of Charge 1.
You are to serve a total imprisonment term of 8 years and 3 months for the three charges.