COURT: The defendant pleaded guilty before a Magistrate to one charge of trafficking in a dangerous drug and was committed before me for sentence.
In sentencing, I have taken into consideration the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on his behalf. I also have regard to the 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.
At about 1.40 am on 5 February 2023, police officers stopped the defendant outside a shopping centre. Upon search, in the defendant’s vest pocket, two plastic bags each wrapped by a tissue containing dangerous drug was found. The drug was a total of 55.6 grammes of a mixture containing 41.2 grammes of heroin hydrochloride. Two mobile phones and some $24,000 in cash were also found on the defendant.
The defendant was arrested. Under caution, he said his customer wanted to buy $40,000 worth of ‘White Powder’ and he helped bring in the drug for a reward of $1,000.
I was told that the defendant is now 56 years of age. He received education up to Primary 6 and had worked as a chef and a construction worker.
This is the third conviction of the defendant for the offence of trafficking in dangerous drug. The first such conviction was in 2010 for which he was sentenced to an imprisonment term of 2½ years. The other such conviction was in 2017 for which he was sentenced to an imprisonment term of 58 months. He has also been convicted for four charges of drug related offences.
In mitigation, learned counsel for the defence, Mr Michael Leung urged the court to take into account that the defendant pleaded guilty at the earliest opportunity and he is remorseful. The defendant indicated that this would be the last time to break the law. His son is going to get married, he does not want his daughter in law and grandchildren to know that he is a prisoner.
Mr Leung also urged the court to ignore the previous conviction record of the defendant and in any case not to find it has significant effect on the sentence because the previous convictions took place a long time ago.
The wife is in court to support the defendant.
The narcotic content of the dangerous drug the defendant trafficked in was 41.2 grammes of heroin hydrochloride.
The Court of Appeal suggested in R v Lau Tak Ming [1992] HKLRD 370, that a sentence of 5 to 8 years’ imprisonment should be considered for trafficking in heroin if the narcotic content is between 10 and 50 grammes.
In all the circumstances, I do not find there are good grounds to depart from the tariff. I consider sentence on the basis that the defendant performed the role of a courier.
I have to take into account that this is the third conviction for the offence of trafficking in dangerous drugs. This is an aggravating feature which calls for consideration of enhancement in sentence. Having regarded the submission of counsel, I am of the view that the sentence should be enhanced for this factor. Bearing in mind the risk of excessive enhancement, in my judgment an enhancement of 3 months is appropriate and sufficient.
In all the circumstances, having regard to the sentencing approach as laid down in the cases I mentioned earlier, I adopt an ultimate starting point of 7½ years.
The defendant pleaded guilty as soon as the matter was dealt with by a magistrate and it is for this reason, entitled to a one-third discount. Having considered all the circumstances, including what learned counsel said on behalf of the defendant, in my judgment this is the extent of discount the defendant is entitled to.
For the abovesaid reasons, I sentence you to an imprisonment term of 5 years.