COURT: The defendant pleaded guilty to one count of trafficking in dangerous drugs on 31 August 2023 and was committed to the Court of First Instance for sentence. Today, he confirms his plea and admission of the Summary of Facts.
He admits he on 9 June 2022, outside Kingland Apartments, Nathan Road, Mong Kok, Kowloon, unlawfully trafficked in dangerous drugs, namely, 13.4 grammes of a crystalline solid containing 13.3 grammes of methamphetamine hydrochloride, ‘Ice’, and 2.99 grammes of a solid containing 2.36 grammes of cocaine.
On the material date, the police saw the defendant walking along a pavement acting suspiciously. They intercepted him and upon a search found a bag containing the ‘Ice’ inside a cigarette box. When he was asked to move to one side for a more comprehensive search, the defendant bolted and fled. He was eventually some distance away caught and subdued.
A further search found in his jeans pocket a bag containing the cocaine of the charge. A mobile phone was also seized.
The defendant admits the total value of the drugs was in the range of $10,218 to $11,476. He admits trafficking in this amount of ‘Ice’ and cocaine.
Mitigation
Mr Yip has said all she can say on behalf of the defendant. He is now 29 years old, single, and was living with his family at the time of his arrest. He is not a man with a clear record. He has a total of 11 convictions over seven court appearances. One is similar to trafficking in dangerous drugs.
When arrested, he was working on a casual basis for a funeral parlour earning approximately HK$20,000 a month. I have seen a letter from his employer who asked for leniency and would reemploy the defendant after he has served his sentence.
The defendant’s best mitigation is his plea of guilty. I have been told he committed these offences to pay off debts owed by his girlfriend to credit card companies. He admits acting as a courier. I have seen a letter from the defendant today expressing his remorse.
Trafficking Guidelines
I have considered the approach to sentencing those that traffic in dangerous drugs. With the Court of Appeal’s guidance in the most recent authority, HKSAR v Lee Ming Ho [2024] HKCA 150, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
In the approach to sentencing, a number of steps have been identified which the court should take, such as assessing the gravity of the offence and applicable guidelines, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors and lastly passing a sentence which is fair, just and balanced in all the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug seized and here there are two types.
The sentencing guidelines for cocaine is found in the authority of R v Lau Tak Ming [1990] 2 HKLR 370. In the Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, the Court of Appeal held that the sentencing guidelines in Lau Tak Ming which are directed at trafficking heroin, are equally to be applied in cases of trafficking cocaine. The starting point for trafficking up to 10 grammes will be between 2 to 5 years’ imprisonment. Mathematically speaking, the total weight of 2.36 grammes of cocaine here alone will attract a starting point of 2 years and 8 months’ imprisonment.
The sentencing guidelines for ‘Ice’ is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The starting point for trafficking between 10 and 70 grammes of methamphetamine hydrochloride will be between 7 and 11 years’ imprisonment. Mathematically speaking, the total weight of 13.3 grammes of ‘Ice’ here alone will attract a starting point of 7 years and 3 months’ imprisonment.
There are two types of drugs for unlawful trafficking in this case that I will take into account, a cocktail of drugs, ‘Ice’ and cocaine. There are two approaches to sentencing in this situation, namely individual approach and the combined approach. It would be sensible to take a combined approach here where the total quantity of drugs will be converted into the quantity of either the most serious or the most prevalent of the two drugs. Often, the combined approach produces the more serious realistic sentence.
The methodology of this combined approach is to first calculate the applicable sentence for the more serious drug and then make an upward adjustment to take into account the other drug. I have been referred to HKSAR v Chan Yuk Leong, CACC 318/2013. In that authority, the Court of Appeal held that the court should take the most serious drug and adjust it upwards for the other drug. The court there discussed three means of cross-checking whether the sentence was manifestly excessive. The first test was the absurdity test, the second test was the conversion test, and the third test was the ratio test.
I have considered the starting point for the ‘Ice’ and cocaine in this case if they were to be dealt with separately. ‘Ice’ is the more serious and more potent of the two drugs as well as the most in quantity here. If the individual approach was taken, that would exceed the criminality of the defendant’s crime.
Therefore, the combined approach is the fairest and the most appropriate approach here. ‘Ice’ is the more or most serious drug in terms of potency and attracts the highest starting point of all the drugs. Here it makes sense that I convert the cocaine to ‘Ice’ and take ‘Ice’ as the base for sentence. Having done that, I calculate 7 years and 3 months’ imprisonment as the appropriate starting point.
The second step of the six steps is to assess the defendant’s role and culpability based on the evidence. I have no reason to reject his evidence that he was acting as a courier, especially as he was caught and searched whilst walking on the street. Therefore, I will determine a starting point from the relevant tariffs and quantity of dangerous drugs involved.
Considering the third step of where within the guidelines the defendant should lie, I will take that starting point of 7 years and 3 months.
The fourth and fifth steps require me to consider whether there are any aggravating factors or any mitigating factors. I find neither exist for the purposes of sentencing.
The defendant pleaded guilty at the earliest opportunity and is entitled to a one-third discount. After that discount is applied, the starting point of 7 years and 3 months’ imprisonment is reduced to 4 years and 10 months’ imprisonment.
The last step is to stand back and look at the overall sentence in order to ensure that it is fair, just, and balanced in all of the circumstances of not only this offence but also the defendant. 4 years and 10 months’ imprisonment is not so harsh a sentence that it is unfair, imbalanced, or unjust. I see no reason to deduct any of that sentence in consideration of this last step.
Accordingly, the defendant is sentenced to 4 years and 10 months’ imprisonment.