COURT: The defendant, Li Ka-yiu, pleaded guilty to two counts of trafficking in dangerous drugs, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, before a magistrate and was convicted to the Court of First Instance of the High Court for sentence.
The summary of facts admitted by the defendant. It arose out of a Customs operation. On the day in question, the defendant was seen by Customs officers to have taken a bag of white item from a bush in a playground in Kwai Fong and put it in his pocket. So because the defendant was looking around and acting furtively, the Customs officers put the defendant under observation and saw him entering a building in Kwai Yi Road in Kwai Fong. I will call that “the Building”.
The defendant was then seen emerging from the Building carrying a green recycling bag later, and he was intercepted by the Customs officers and a search was conducted. And inside the recycled bag, the Customs officers found 14 plastic bags containing a total of 243 grammes of a crystalline solid containing 241 grammes of ‘Ice’. The defendant was then arrested and cautioned.
Under caution, he said he did not know what the item was, it did not belong to him, and he did not know how it was obtained, basically, all denial. But he did say that he lived at 9E of the Building. And on his person, at that time, was found $50, two mobile phones with three pre-paid SIM cards.
And so the defendant was taken to this Flat 9E, where he said he was living, for a search, and there was no normal furniture there. There was no sofa, no television, no tables. And 752 grammes of ‘Ice’ and some drug-packing items were found there.
The details are as such. Under a wooden cabinet in the living room, there is a blue shoebox containing 20 plastic bags containing a total of 312 grammes of a crystalline solid containing 310 grammes of ‘Ice’ and 24 plastic bags containing a total of 444 grammes of a crystalline solid containing 442 grammes of ‘Ice’, and there is a plastic bag containing one plastic spoon and 0.06 grammes of a crystalline solid containing ‘Ice’.
On top of the wooden cabinet in the living room, there was a vacuum sealer, three electronic scales with batteries and a large number of empty transparent re-sealable plastic bags. Under caution, the defendant again said he did not know what the items were, that although they belonged to him, he did not know how to handle them.
So the estimated street value of the drugs concerned was $684,356.10.
Background and Mitigation
The defendant was born in December 2005. He is now 18 years of age. He had no previous conviction, educated up to Form 3, was unemployed. At the time, he was residing with his grandmother, mother and younger brother. That is prior to the arrest.
Ms Vickie Ling, the counsel for the defendant submitted that the defendant was 16 years of age when he committed the present offences. The defendant’s father is a vehicle maintenance worker, and his mother is an insurance broker. His parents were divorced. And during the pandemic, the defendant moved to stay with his father, who worked in a garage business. But because the father could not leave him alone at home and also was of the view that the defendant was idling, so the father took the defendant to work and made him help out with vehicle maintenance.
So the defendant then started to fall behind his studies, and conflicts between the defendant and his father intensified. The defendant then moved back to live with his mother. And as the defendant’s grandfather suffers from serious illness, his mother’s salary was needed for medical expenses. And the defendant had no money to spend, and he had no motivation to study. And he got acquainted with undesirable people, who then lured the defendant, by giving him financial support at first, and then later into committing the present offences.
Counsel referred this court to the case of Tam Yi Chun and Abdallah and submitted that the trafficking of 993 grammes of ‘Ice’ would attract a starting point of 263.6 months on a pure mathematical calculation, just under 22 years.
Counsel submitted that Customs officers clearly already had information and waited nearby when the defendant appeared. The premises was rented by someone else, and the defendant’s parents suffer from severe financial hardship. The defendant was lured by older people to commit the offences. And given the defendant’s relatively young age and lack of life experience, he felt that the older person had helped him, so he could not refuse to the older person’s request to deliver dangerous drugs.
The defendant failed to understand the serious consequences of his illegal acts. The defendant did not get any extra reward for taking part in the trafficking. Counsel submitted that the defendant played a relatively minor role, who was lured and used by drug dealers.
This morning, I was also given a letter written by the defendant’s mother. The defendant’s mother wrote in detail the sad background of the divorce and how she had to bring up the defendant and a younger son. And I don’t really think there is any need to go into great detail of what she has said. Basically, she is asking for leniency so that you can go out and be with her as early as possible.
Consideration for the Sentence
Offences involving dangerous drugs are serious, particularly when the trafficking of dangerous drugs is concerned. A person convicted on indictment of this offence is liable to a fine of $5,000,000 and to imprisonment for life.
Now, I will adopt the six-step approach in Herry Jane Yusuph. So, the first step, I have to decide the quantity of the drugs involved. The quantity of ‘Ice’ involved here is 993 grammes. Then according to the case of Tam Yi Chun and Abdallah, this quantity falls under the bracket of between 600 and 1,200 grammes, with a starting point of 20 to 23 years. So on a mathematical calculation, the starting point would be just under 22 years.
The second step is to decide the role of the defendant in this case. I accept that the defendant acted as a courier, which is the lowest of the rank.
The third step is to decide where in these 20 to 23 years I should place the defendant. The defendant was a 16-year-old youth at the time, who was clearly used by older people to take delivery of the drug. So having considered the circumstances of the offence and the defendant’s role, I am of the view that a notional after-trial starting point of 20 years is appropriate.
The fourth step, I have to decide on any aggravating factor. I don’t think there are any aggravating factors to enhance this starting point.
The fifth step is mitigation. The defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. There are no other mitigating factors.
The last step is to see whether the sentence to be passed is a fair and just one in all the circumstances. And with the one-third discount, the sentence would be 13 years and 4 months. And I am of the view that it is a fair and just sentence in all the circumstances of the offence and in view of the circumstances of the offender as well.
So the actual sentence for the 1st count, trafficking in dangerous drugs, 13 years and 4 months. 2nd count, trafficking in a dangerous drug, again, 13 years and 4 months. Both sentences to run concurrently, making a total of 13 years and 4 months.