CRIMINAL CASE NO. 106 OF 2012
The accused pleaded guilty before me to two counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.
On 15 April 2011, the accused sold a packet containing 0.24 gramme of cocaine to an undercover police officer at the price of HK$500. This is the subject matter of the 1st count.
On 12 November 2011, while the accused was leaving home with a male, they were intercepted by the police. During the subsequent search of the premises, a total of 67 plastic bags of dangerous drugs, two electronic scales, and some unused transparent plastic bags were found.
Under caution, the accused admitted that the drugs and the paraphernalia belonged to her. She also admitted making a living by selling drugs.
The drugs seized on this occasion were those particularised in the 2nd count. That is, 42.12 grammes of methamphetamine hydrochloride, commonly known as “Ice”; 5.18 grammes of herbal cannabis; and 0.35 gramme of ketamine.
Mitigation
The accused is aged 21 and was born in the Mainland. She came to settle in Hong Kong in 1995. She was educated up to Form 3 level. After graduation, the accused had been unemployed for about two years. She then worked as a waitress. At the time of the offence, she was again unemployed.
In 2009, the accused was convicted of possession of a dangerous drug and she was sent to the DATC. She was released in April 2010.
In mitigation, it was said that the accused made full admission at the time of her arrest and she did not attempt to run away. It was also said that since her remand, the accused has enrolled herself in a course in CUHK, hoping to get a diploma in management and marketing in the end. In other words, Mr Surman submitted that the accused is determined to turn over a new leaf.
This morning, I was also given letters written by the accused and her mother. It would appear that, as Mr Surman put it, the incident had drawn the family together, and the accused has the full support of her family, the members of which would help her to mend her ways.
Sentencing Considerations
According to Attorney-General v Pedro Nel Rojas [1994] 2 HKCLR 69, the heroin trafficking guidelines laid down in R v Lau Tak Ming [1990] 2 HKLR 370 are applicable to trafficking in cocaine.
In respect of the 0.24 gramme of cocaine involved in the 1st count, I consider a starting point of 6 months to be appropriate.
In respect of the 2nd count, as it involved multiple drugs, there are two sentencing approaches. That is, the individual approach and the combined approach. See, for example, HKSAR v Ko Ka Hing [2009] 4 HKLRD 856. No doubt, irrespective of which approach is to be taken, the paramount consideration at the end of the day is the totality of the overall starting point.
Having considered the facts of the 2nd count, I am going to adopt the combined approach. The bulk of the drugs was “Ice”. The tariff for trafficking in “Ice” was laid down in Attorney-General v Ching Kwok Hung [1991] 2 HKLR 125, corrected in HKSAR v Capitania CACC 28 of 2004 unreported. For trafficking between 10 and 70 grammes of “Ice”, a term of imprisonment of between 7 and 10 years is called for.
In the present case, taking into account the amount of “Ice” involved and that it is more serious to traffic in more than one type of drugs, I consider an overall starting point of 8 years and 9 months for this count to be appropriate.
The Sentence
The accused pleaded guilty, and she will receive a one‑third reduction for that. Although Mr Surman submitted that she made full admissions at the time of her arrest, the cases have already laid down the principle that the one‑third reduction is the high-water mark for a plea of guilty including such admission.
Other than her plea, there is nothing in this case which would warrant any further reduction in sentence.
The accused is therefore to serve a term of 4 months’ imprisonment for the 1st count, and a term of 70 months for the 2nd count.
These two offences were separate and distinct, and were committed on different occasions. In principle, the sentences should be served consecutively. However, applying the totality principle, I order that the two terms be served wholly concurrently, thus arriving at an overall term of 70 months’ imprisonment.