HKSAR v. C

HCCC 172/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 172 OF 2015

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REASONS FOR SENTENCE

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1.The defendant faced a single count of trafficking in dangerous drugs and just prior to his trial indicated through his legal representatives that he would plead guilty to the count on the first day of trial, which he did on 11 May 2016.

2.There followed several hearings to address the issue of the defendant’s assistance to the authorities for which counsel on his behalf, Ms Liza Li, sought a reduction to his sentence.  It turned out that the assistance he rendered was as a paid informer and prior to his arrest for this offence.  As a result, at the last hearing on 30 June 2016, I made an anonymity order because of the matters that needed to be addressed by the Court.  I considered that this would afford the appropriate level of protection to the defendant without making any substantial inroad to the principle of open justice. 

3.The particulars of the count to which the defendant has pleaded guilty are that on 21 September 2014 he trafficked in dangerous drugs, namely 27.7 g of a crystalline solid containing 27 g of methamphetamine hydrochloride, commonly known as Ice, and 28.1 g of a mixture containing 17.4 g of heroin hydrochloride.

4.The agreed facts giving rise to this offence were that at 3:05 am on 21 September 2014 a motor vehicle in which the defendant was an occupant was stopped at a police road block in Sham Shui Po. The vehicle was searched by police officers who found two plastic bags, one at the left-hand side of the front passenger seat, and the other underneath it where the defendant had been sitting.

5.The two bags contained the drugs as specified in the count and the defendant accepts and admits that he was in possession of the drugs for the purpose of trafficking in the bulk of them.  The estimated street value of the drugs at the time of the offence was HK$32,182.

6.The defendant was also found to have on him a total of HK$67,120 and a small amount of Renminbi.

7.The defendant is 36 years of age and has a long history in the drug trade as evidenced by his numerous previous convictions for drug offences dating back from 1996 to the present.  He has in fact 17 previous convictions for drug offences where the sentences have included attendance at a drug addiction treatment centre or terms of imprisonment.  His last conviction was on 14 August 2012 for trafficking in a dangerous drug for which he received a sentence of 25 months’ imprisonment.  He admits that he has an addiction to Ice and heroin.  He is unmarried and has no fixed place of abode.  He was educated to secondary level in Hong Kong and has worked as an electrical technician. His family consists of his mother and father and younger sister.  His father was recently diagnosed with cancer and he has spent time caring for him.  He claims that he has become a Christian and is determined to turn a new leaf.

8.As specified in the count, there were two batches of drugs in the possession of the defendant for the purposes of trafficking, namely separate quantities of heroin and Ice.  These two drugs are of similar potency and have similar guideline tariffs for the quantity of narcotic content involved. 

9.In such a situation a sentencing court may take one of two approaches: HKSAR v Yip Wai Yiu & Anor [2004] 3 HKC 367. One is the individual approach where the court applies the guideline tariff relevant to each drug and adds up the sentence.  Sometimes some adjustment may be necessary to ensure that the sentence is just and balanced.  The other is the combined approach where the quantities of drugs of similar potency are combined and the guideline tariff of the most appropriate drug is applied.

10.By taking the individual approach the narcotic content of Ice of 27 g, when applying the guideline tariff for Ice, (HKSAR v Tam Yi Chun [2014] 3 HKLRD 691), results in a starting point of 8 years and 2 months, and the narcotic content of heroin of 17.4 g, when applying the guideline tariff for heroin, (R v Lau Tak Ming [1990] 2 HKLR 370), results in a starting point of 5 years and 7 months.  The two starting points added together is 13 years and 9 months.  This would obviously need an adjustment downwards to come to a just and balanced sentence.

11.By taking the combined approach the total narcotic content of both quantities of drug is added together which is 44.4 g.  When applying the guideline tariff for Ice, the starting point is 9 years and 4 months, and when applying the guideline tariff for heroin, the starting point is 7 years and 7 months.  The difference between the two seems to arise because the guideline tariff for Ice is slightly higher for smaller quantities even though for medium and larger quantities the guideline tariffs are the same for both drugs.

12.In sentencing the defendant, I will take the combined approach and as the largest quantity of drug was Ice, I will apply the guideline tariff for that drug.  However, I will make an adjustment downwards to 8 years and 6 months to allow for the fact that nearly 40% of the total drugs were heroin which has slightly less guideline tariffs for smaller quantities of the drug as I have indicated in the preceding paragraph.

13.It is submitted that some of the drugs were for the defendant’s own consumption.  It is submitted, and it is not disputed by the prosecution, that he intended to put aside about 5 to 7 g of each type of drugs for his own consumption which would have lasted him about a week.  It has been held in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 that “…when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10 and 25% of the basic starting point.” 

14.I am prepared to accept that the quantity of drugs as suggested was intended for self consumption by the defendant and accordingly I will adjust the sentence to reflect that fact.  In making an appropriate adjustment, the Court will necessarily bear in mind that possession of the drugs simpliciter carries a term of imprisonment.  I will reduce the starting point to 7 years and 9 months’ imprisonment. 

15.A further issue that has arisen in the course of addressing the sentence to be imposed on the defendant is his provision of information to the authorities before his arrest for this offence for which he received a reward. 

16.The issue of assistance to the authorities was addressed by the Court of Final Appeal in Z v HKSAR [2007] 2 HKC 265. On the specific issue of pre-arrest assistance, Li CJ (with whom the other judges agreed) explained that a sentencing court must first examine and understand the circumstances that lead the defendant to assist the authorities.  He said:

“19. Although pre-arrest assistance may be recognized, the court should examine the circumstances relating to it before deciding whether and if so, the extent to which it should be taken into account. …In a pre-arrest case…the reason for his co-operation may not be apparent and it is even more important for the court to understand the circumstances relating to his assistance before deciding whether and if so, the extent to which a reduction in sentence is merited.”

17.He went on to explain that in deciding whether in such circumstances a reduction in sentence is merited it will depend upon the particular facts and circumstances of the case and in this respect gave some guidance by reference to various case scenarios, including where a defendant rendered assistance as a paid informer.  He said:

“20. Obviously, the circumstances which a sentencing court may have to consider vary from case to case and are of an infinite variety. For present purposes, a number of matters may be mentioned. First, the defendant may have assisted the authorities out of good motives. He may have had a genuine wish to assist the authorities. His assistance in these circumstances would usually deserve full recognition in mitigation of sentence. Secondly, the defendant may have received payment or other consideration for his assistance. It has to be recognised that payments to police informers are a fact of life and the use of informers is necessary in society’s fight against crime. Although assistance for which payment or other consideration was given may be recognised as a mitigating factor, the court should carefully consider all the circumstances in deciding whether the assistance in the case in question deserves any reduction and if so, the amount of reduction. The more substantial the payment or consideration, the less sympathetic should the court be in this regard. Thirdly, the courts should be wary of the situation in which a defendant who is engaging or is intending to engage in criminal activities gives assistance to the authorities in order to build up credit for himself to be used later if apprehended for the purpose of minimising the consequences of his crimes. Although there is no bar against the recognition of assistance given in such a situation, the courts should proceed with considerable circumspection in deciding whether, taking into account all the circumstances, the assistance merits any recognition and if so the degree of any discount. It is undesirable for the courts to take an approach which has the effect of fostering potential defendants trying to build up goodwill in this way. See R v Mundy (1994) 76 A Crim R 92 at 95, R v A (New Zealand CA 308/02, 16 December 2002, unreported) and at para 19 and R v Hayes (1981) 3 A Crim R 286 at 287.”

18.In another case where the defendant had provided pre-arrest assistance as a paid informer, it was held by the Court of Appeal in HKSAR v B [2007] 5 HKC 178 that the defendant should be denied any further benefit as he had already received benefit for the assistance he had previously rendered.  However, it would appear that case was decided on its particular facts and circumstances and bearing in mind the guidance given by Li CJ in Z. 

19.Obviously, when an issue of this type arises, it will very much depend on the particular facts and circumstances of the case as to whether any further reduction should be given to a defendant for what he has previously done and for which he has previously received a benefit.  It would seem that only in the most exceptional circumstances would a defendant receive further benefit for assistance from which he has already benefited. 

20.Given the defendant’s background and history in the drug trade, I consider the defendant an opportunist who performed the role of a paid informer when it suited him, while at the same time continuing with his involvement as an active participant in the drug trade.  He provided information to the police for which he received a reward.  The sum of the reward was $39,800 which was not insignificant.  The information provided did result in a person being convicted of trafficking in a dangerous drug.  But given all the circumstances, I am not inclined to give him any further benefit beyond the monetary reward he has already received. 

21.The defendant is entitled to a one-third discount for his guilty plea.  On a starting point of 7 years and 9 months’ imprisonment, the defendant’s sentence is reduced to 5 years and 2 months’ imprisonment.  Accordingly, the defendant is sentenced to a term of imprisonment of 5 years and 2 months.

Mr Andrew Raffell, counsel on fiat, for HKSAR

Ms Liza Li, instructed by Ivan Tang & Co., assigned by Director of Legal Aid, for the defendant