HKSAR v. Xue Feibing

HCCC 212/2019

[2019] HKCFI 2845

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 212 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant has pleaded guilty to one count of trafficking in dangerous drugs. He pleaded guilty and admitted the Summary of Facts. He was committed to this court for sentence on 24 June 2019 by Eastern Magistracy.

The particulars of the charge are that on 20 March 2018, in Room A, 2nd Floor, 15 Yi Pei Square, Tsuen Wan, New Territories, defendant unlawfully trafficked in 34.83 grammes of a crystalline solid containing 33.83 grammes of ‘Ice’ and 16.8 grammes of a solid containing 16.2 grammes of cocaine.

That address was a target. And on 20 March, the police armed with a search warrant placed themselves outside the address. When the defendant opened the door and poked his head out, he was intercepted by those police officers. They entered the premises and found the drugs, two electronic scales and a large amount of empty transparent resealable plastic bags on a table in the living room. There was a female in the premises but she was not arrested. The defendant was cautioned and he readily admitted that the drugs found in the premises belonged to him and he intended to sell it to his neighbours. The police also found $24,000 in cash, a tenancy agreement in the defendant’s name and four mobile phones.

In a subsequent video-recorded interview, the defendant elaborated and explained from whom he bought the drugs and that his intention was to sell it to his neighbours. He would even allow purchasers to consume drugs in the premises. He told the police that he would himself consume a small amount of cocaine on a daily basis. He worked as a construction site worker, earning approximately $30,000 per month and had been gainfully employed for the past 13 years.

The estimated street value of the ‘Ice’ at the material time was $18,773 and the cocaine $20,731. The defendant now admits that he possessed all the drugs for the purposes of unlawful trafficking.

I have heard in mitigation the defendant’s background. He is now 40 years old and was born in 1978 in mainland China, came to Hong Kong in 2005. He was married and has an 18‑year-old son and a 16-year-old daughter who live in mainland China with their mother. He does have a criminal conviction. In July 2018, he was sentenced to 5 months’ imprisonment, suspended for 18 months, for assault occasioning actual bodily harm, but this means that at the time of his arrest, he had a clear record.

Mr McGuinniety has said all he can say on behalf of the defendant in mitigation. As is the norm where drug trafficking is concerned, his best mitigation is his plea of guilty. I accept it is indicative of genuine remorse.

Mr McGuinniety has pointed out that the defendant did tell the police that he would smoke cocaine twice a day. The urine tests results from when the defendant was remanded show a negative result for cocaine but a positive result for amphetamine.

The defendant is not submitting that he is a drug addict and that a significant proportion of the drugs were for his own consumption. After all, in the Summary of Facts, he agreed that all the drugs found were for unlawful trafficking. What he is saying is that he sometimes takes dangerous drugs, that is from time to time. Mr McGuinniety is not putting forward mitigation that a substantial amount was for self-consumption. He cannot say that this mitigation of the occasional drug use will have an impact on sentence.

In HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, the Court of Appeal found that anything less than a significant proportion being retained for self-consumption would make no or practically very little difference to sentence. Despite Mr McGuinniety’s best endeavours and admission that the defendant took drugs from time to time, it does not support a discount for self-consumption in this case. This mitigation makes no difference to sentence.

Trafficking Guidelines

Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of up to $5 million and to imprisonment for life.

The sentencing guideline for ‘Ice’ is found in the authority of HKSAR v Tam Yi Chun[2014] 3 HKLRD 691 and the starting point for trafficking in between 10 to 70 grammes of ‘Ice’ is 7 to 11 years’ imprisonment. Therefore, the starting point for trafficking in 33.83 grammes of ‘Ice’ in this case, mathematically, is 8 years and 7 months.

The sentencing guideline for cocaine is found in the authority of R v Lau Tak Ming [1990] 2 HKLR 370. In the Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, the Court of Appeal held that the sentencing guidelines in Lau Tak Ming which are directed at trafficking heroin are equally to be applied in cases of cocaine trafficking. The starting point for trafficking between 10 to 50 grammes of cocaine is 5 to 8 years’ imprisonment. Therefore, the starting point for trafficking in 16.2 grammes of cocaine in this case, mathematically speaking, is 5 years and 6 months.

There are two types of drugs for unlawful trafficking in this case: ‘Ice’ and cocaine, a cocktail of drugs. There are two approaches to sentencing in this situation, namely the individual approach or the combined approach. It would be sensible to take the combined approach here where the total quantity of drugs will be converted into the quantity of either the most serious or the most prevalent of the two drugs. Often the combined approach produces the more realistic sentence, and I have referred myself to HKSAR v Leung Chun Pong [2009] 6 HKC 672 and HKSAR v Wong Kin Kau [2010] 4 HKC 443.

The methodology of this combined approach is to first calculate the applicable sentence for the more serious drug and then make an upward adjustment to take into account the significant quantities of the other drug. I have referred myself to HKSAR v Ko Ka Hing [2009] 4 HKLRD 856 and HKSAR v Chan Yuk Leong, CACC 318/2013.

In that last authority, the Court of Appeal there also held that the court should take the most serious drug and adjust it upwards for the other drug. The court there discussed three means of cross-checking whether the sentence was manifestly excessive: the first test was the absurdity test, the second test was the conversion test and the third test was the ratio test.

I have considered the starting points for the ‘Ice’ and the cocaine in this case. If they were to be dealt with separately, ‘Ice’ is the more serious and more potent of the two drugs as well as the most in quantity. If the individual approach was taken, the individual sentences or starting point for the two types of drugs added together would make a total of 14 years and 1 month. That would far exceed the criminality of the defendant’s crime. Therefore, the combined approach is the fairest and appropriate approach here.

Defendant, please stand up. ‘Ice’ is the more or most serious drug in terms of potency and quantity and attracts the highest starting point of both drugs. Here it makes sense that I take ‘Ice’ as the base for sentencing. If I were to convert the cocaine into ‘Ice’, it would be equivalent to 6.16 grammes of ‘Ice’. Therefore, the total amount of narcotics to be treated as ‘Ice’ would be 39.99 grammes. This would attract a starting point of 9 years’ imprisonment.

I have taken into account everything said on behalf of the defendant, in particular, the fact the defendant pleaded guilty at the earliest opportunity and is therefore entitled to the full discount. When that discount is applied to the starting point of 9 years, it is reduced to 6 years. Therefore, the defendant is sentenced to 6 years’ imprisonment for this offence.

Can I ask the defendant if he understands that sentence?

ACCUSED: Yes.