COURT: This defendant has pleaded guilty to an offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Defendant, you have admitted on 2 June 2021 you unlawfully trafficked in a dangerous drug, 74.8 grammes of a crystalline solid containing 74.5 grammes of ‘Ice’, methamphetamine hydrochloride. This plea was entered before Eastern Magistracy on 7 November 2022 and defendant was committed to the Court of First Instance for sentence.
The Facts
Late that afternoon on 2 June 2021, police officers acting on information conducted an anti-narcotics operation in the vicinity of Carnarvon Road, Tsim Sha Tsui. Two police officers spotted the defendant and another female at around 6.47 pm walking along Cameron Road. They looked around nervously, anxiously and drew attention to themselves. The police followed them to a 7-Eleven convenience store where they purchased some items. The police then followed them to the entrance of Perkin Hotel on Knutsford Terrace where they intercepted them both.
The key card to a hotel room on the 15th floor was found in the defendant’s bag. They took both women up to Room 1502 to conduct a body search as it was not appropriate to do this on the pavement. Both women chose to be searched inside the hotel room as opposed to the police station.
Nothing illegal was found on the woman with the defendant, but upon a search of the defendant herself, a total of three resealable plastic bags containing the ‘Ice’ of this charge were found in the defendant’s underpants.
She was arrested for trafficking in dangerous drugs and under caution, she admitted that she was going to resell the drugs to other people. No other illegal items or paraphernalia were found inside that hotel room.
The defendant later gave more details under caution at the police station. She said that her friend accompanying her when they were stopped by the police had no idea she was carrying drugs. She had purchased the drugs earlier that afternoon for $10,000 and intended to sell the drugs on for a financial gain. She had been living in that hotel room for a few days and rented it alone.
Ms Lau has mitigated on behalf of the defendant and said all she can say in mitigation. I have received written mitigation in advance. The defendant is not a woman with a clear record. Prior to this offence, she had eight previous convictions from six court appearances and was first convicted of possession of dangerous drugs in 1997, then 2002 and 2005. She has previously been convicted of trafficking in dangerous drugs in 2005 and 2014. The last conviction for trafficking in dangerous drugs was July 2014 when she was sentenced in the High Court to 5 years and 8 months’ imprisonment. She was on bail for a possession of dangerous drugs case when she was arrested for this trafficking charge.
The defendant is now 44 years old, divorced and used to work as a waitress but was unemployed at the time of her arrest. The defendant was pregnant when she was arrested and gave birth to a daughter whilst on remand. I have been told the father of this child is not involved in their lives. She loves her daughter very much and feels guilty that she has been born into such a situation. At some stage, whilst the defendant is serving a sentence for this offence, her daughter will be handed over to a foster family for care and protection until the defendant can be a fit and proper mother.
I have a letter of mitigation written by the defendant. It does not try and excuse or explain her reasons for committing this serious offence except to say she did it for money. She reiterates her guilt and remorse for her daughter being born in a prison and living in a prison. She desperately wants to give her daughter a normal life and hopes to be able to provide for her once she has served this sentence.
Trafficking Guidelines
The sentencing guidelines for trafficking in ‘Ice’ is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, and the starting point for trafficking between 70 and 300 grammes of ‘Ice’ is between 11 and 15 years’ imprisonment. Therefore, trafficking in 74.5 grammes of ‘Ice’ in this case would mathematically attract a starting point of 11 years and 1 month’s imprisonment.
I have considered the recent Court of Appeal case of HKSAR v Herry Jane Yusuph, CACC 93/2019, and the six-step approach in sentencing drug trafficking offenders. I accept this defendant is a drug mule or courier. There is no evidence to suggest otherwise. Therefore, the approach is to consider the quantity of drugs and the tariff guidelines to determine the starting point.
This is the defendant’s third conviction for trafficking in a dangerous drug and I have had sight of the reasons for sentence, the sentence imposed in HCCC 436/2013 on 8 July 2014. She pleaded guilty to trafficking in 45.08 grammes of ‘Ice’. Moreover, she was on bail when arrested for this offence. I could consider the defendant’s past criminal record of similar offences as evidence of recidivism and consider this an aggravating factor, but on this occasion I will not, but the defendant should be warned that this would be a likely scenario in the event of any further similar convictions. The same applies for committing further offences whilst on bail.
Having considered all mitigation put forward, the facts of this case and the tariff guidelines, I will take a starting point of 11 years’ imprisonment for trafficking in 74.5 grammes of methamphetamine hydrochloride.
The defendant pleaded guilty at the earliest opportunity and is entitled to a one-third discount. Having considered the whole circumstances, including what has been said on behalf of the defendant, that is the extent of the discount the defendant is entitled to in this case. This is a consideration of the sixth step of the Herry Jane Yusuph authority.
Accordingly, after that discount is applied, I sentence the defendant to 7 years and 4 months’ imprisonment.