COURT: The defendant pleaded guilty before a magistrate to two charges of attempting to traffic in a dangerous drug and was committed before me for sentence.
In sentencing, I have considered the whole of the circumstances, including the nature and facts of the case, the type and quantity of the substance alleged to be involved, personal background of the defendant and mitigation put forward on her behalf. I have also had regard to the general sentencing approach as laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
The facts of the case may be summarised as follows. The defendant was stopped by police officers when she was coming out from a hotel. Upon search, suspected dangerous drug was found on her, and she was arrested. Under caution, she said, “I owed others money. These ‘Ice’ drug were for sale to others so that I could repay the debt.”
She was then escorted back to the hotel, and a search was conducted in the room where she had stayed as a guest. There, further suspected dangerous drug was found. Under caution, she said, “I owed others money. These ‘Ice’ drug were for sale to others for repaying the debt.”
In two subsequent video-recorded interviews, she made similar admissions and gave further details as to how she came to have the substance and how she was to deal with it after she had obtained possession.
The suspected dangerous drug was examined later and found not to be a substance controlled under the Dangerous Drugs Ordinance. It was N-Isopropylbenzylamine, and the total quantity was 185.6 grammes. If sold as methamphetamine, the estimated retail value would have been in the region of $127,000.
The defendant is now 51 years old. She was educated up to Form 3 and was unemployed at the time of arrest. She has an appalling criminal conviction record. She was on nine occasions convicted of the offence of possession of dangerous drug and on six occasions convicted of the offence of theft. She has also been convicted of the offence of gambling and copyright offences. However, it was the first time she is convicted of an offence relating to trafficking in dangerous drug.
In mitigation, learned counsel for the defence, Ms Catherine Fung, stressed that the defendant pleaded guilty at the earliest opportunity and that she is full of remorse. Ms Fung also informed the court that during her remand, the defendant tried to equip herself for a new life. She completed a cleaning certificate course and has enrolled in learning programmes on self-directing learning series and Chinese herbal and nutrition therapy.
Ms Fung also asked the court to accept that the defendant was only a courier and disregard the criminal record for the purpose of sentencing, in particular, as none of them relate to trafficking in dangerous drug.
A letter written by the defendant was produced in which she gave an account of the circumstances she came to commit the offence, and she expressed remorse.
Obviously, the defendant thought and believed she was trafficking in ‘Ice’, a dangerous drug, but it turned out that the substance in her possession was not a substance controlled under the Dangerous Drugs Ordinance. The quantity was substantial. It was a total of 185.6 grammes. If the substance was ‘Ice’ as the defendant believed it was, having regard to the observation of the Court of Final Appeal in Seabrook v HKSAR [1999] 2 HKCFAR 184, I am of the view that the new tariff set out in the recent case of HKSAR v Huang Ruifang (No. 3) [2025] 2 HKLRD 138 should be applied.
In consideration, I bear in mind in my judgment that the role of the defendant was low in the hierarchy. I also accept that as this was the first time the defendant committed the offence of trafficking in dangerous drug, despite her bad record, an enhancement in sentence is not called for.
The quantity of the substance on the defendant was 25.6 grammes. The quantity of the substance found in the hotel room was 160 grammes. Applying the said tariff and my judgment on the role of the defendant, if the substance was ‘Ice’, the following notional sentence after trial would in the circumstances of the present case be appropriate. For the first batch which was of 25.6 grammes, 8 years; for the second batch which was of 160 grammes, 12½ years.
In reaching these notional sentences after trial, I take into account that the purity of this type of drug in the illicit trade is usually very high. The defendant pleaded guilty to both charges before a magistrate, and for this reason, she is entitled to a one-third discount. An important feature in this case is that notwithstanding the belief of the defendant, the substance in question was not ‘Ice’, not even any type of dangerous drugs.
In consideration of the appropriate sentence, I have had regard to the cases which Ms Fung has helpfully brought to my attention, in particular, the cases of HKSAR v Li Oi Yee [2012] 1 HKLRD 276 and HKSAR v Cheng Ling Ling [2019] 3 HKLRD 797. The former case was a conviction after trial, and in the latter case, the appellant had pleaded guilty.
In gist, the Court of Appeal held that the court should take into account the harm created by the conduct such as this defendant in the advancement of the culture and business of trafficking in dangerous drugs. It should be the firm aim of the court to dissuade people from engaging in this trade. The Court of Appeal stressed that the mens rea of this sort of attempting trafficking is exactly the same as the mens rea as the substance was indeed a dangerous drug. And by reason of this mens rea, there was a substantial degree of criminality.
Deterrence is a significant part of sentence for this nature of conduct. The sentence approach is to look at the sentence which would have been imposed for trafficking in the drug the defendant believed she possessed and accord a reduction in recognition of the fact that the actus reus brought with it little or no harm.
In gauging the reduction, the court has to take into consideration the whole circumstances of the case. The greater the difference between what the defendant believed he was trafficking, the greater is the reduction provided it does not diminish the gravity of the offence or undermine the deterrent effect of the sentence.
Bearing the said sentencing principle in mind, taking into account the defendant is entitled to a one-third discount for her guilty plea at the earliest opportunity and having considered the whole circumstances of the case, including what Ms Fung said on behalf of the defendant, I impose the following sentence on the defendant for each charge: Charge 1, 3 years and 9 months; Charge 2, 5 years and 10 months.
The defendant was convicted of two charges. The aggregate sentence to impose on the defendant should be one taking into account the overall criminal culpability of the defendant, for which the main factor is the total quantity of the substance involved. The total quantity of the two batches of substance was 185.6 grammes. If the substance was ‘Ice’, an overall notional sentence after trial of 13 years is appropriate.
Taking all the relevant factors into account, in my judgment, an ultimate total sentence of 6 years and 1 month for the two charges is appropriate and sufficient to reflect the overall culpability of the defendant in this case.
I am of the view that the individual sentences and the overall sentence to impose are fair, just and balanced in all the circumstances of the case and of the defendant. To give effect to this, I will order the sentences be partly consecutive.
Defendant, please stand up. By reason of the matters aforesaid, I impose the following sentences on you: Charge 1, an immediate imprisonment term of 3 years and 9 months; Charge 2, an immediate imprisonment term of 5 years and 10 months. Further, I order 2 years and 4 months of the sentence for Charge 2 to run consecutively to the sentence on Charge 1. You are to serve a total sentence of 6 years and 1 month for the two charges.