COURT: The defendant pleaded guilty to three charges in the magistracy and was committed to the Court of First Instance for sentence. All three charges arose from a stop and search of the defendant on 3 January 2020 outside Wing On Mansion, Nos 22 to 28 Tai Ho Road, Tsuen Wan.
The first of the three charges was in trafficking in a dangerous drug, namely, 0.29 gramme of a solid containing 0.26 gramme of cocaine that he was holding in his hand when intercepted by the police.
The 2nd charge was trafficking in dangerous drugs, namely, 235.7 grammes of a mixture containing 167.5 grammes of heroin hydrochloride and 176.07 grammes of a crystalline solid containing 173.05 grammes of methamphetamine hydrochloride, in respect of drugs found at his residence.
The 3rd charge was conspiracy to traffic in a dangerous drug between 3 December 2019 and 3 January 2020 and this charge arose from admissions he made in a video-recorded interview.
All offences were in breach of section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and the last charge was also contrary to sections 159A and 159C of the Crimes Ordinance, Cap 200.
At the time of his plea, he also admitted the truth of a Summary of Facts which set out the circumstances of the offence. Before me, he confirmed both his pleas and his admission of that Summary of Facts.
The Summary of Facts revealed that on 3 January 2020 at around 6.17 pm, the defendant was intercepted by police officers who observed him walking quickly on Tai Ho Road and clenching his left fist. When they requested him to open his left hand, a transparent resealable plastic bag dropped from it onto the ground. This was subsequently found to contain the quantity of cocaine that is particularised in the 1st charge.
The defendant was then asked where he lived and when he informed them of his address, they went there when they had obtained a search warrant. When they entered the flat, they found a 41-year-old female inside it. A search of it revealed items on a shelf behind the television. They were one transparent resealable plastic bag containing a plastic spoon and eight plastic bags containing 138 grammes of a mixture containing 100 grammes of heroin hydrochloride. One black plastic bag containing four plastic bags wrapped in tissues containing a total of 97.7 grammes of a mixture containing 67.5 grammes of heroin hydrochloride. One yellow plastic bag containing a plastic spoon and eight plastic bags containing a total of 176.06 grammes of a crystalline solid containing 173.05 grammes of methamphetamine hydrochloride. Two electronic scales and one plastic bag containing four transparent resealable plastic bags each containing a stack of empty transparent resealable plastic bags.
On a table next to the sink, the police officers also found an inhaling device containing a liquid which, upon drying, was found to contain 0.08 gramme of a solid containing cocaine and one glass bottle with two openings, one of the openings was inserted with a plastic tube containing traces of a solid containing cocaine.
On 4 January 2020, the defendant participated in a video-record of interview. In this interview, the defendant admitted that about a month previously, he became involved in delivering drugs on behalf of other people. He said that at the time of his arrest, he was going to deliver the plastic bag containing drugs which he dropped onto the ground. He did not know the type, price, or weight of these drugs but was waiting for instructions. He would receive $300 as a reward for each packet delivered to him.
The defendant said he also collected drugs for a friend and would get $300 as a reward for each packet collected by him. The defendant said that the two electronic scales had been bought by him two to three months previously and he used them for weighing drugs. Some of the empty transparent resealable plastic bags had been given to him by those who asked him to collect drugs and some had been bought by him.
The defendant said he was not a drug user and that the two drug-inhaling devices found in his flat belonged to him but they were for lending to other people to inhale drugs. He said his role was only to deliver drugs in return for a monetary reward and that he became involved in drug trafficking because he needed money.
In January 2020, the estimated retail value of the drugs the subject of the 1st charge was around $328 and for all the dangerous drugs particularised in the 2nd charge it was around $285,461.
The defendant is 53 years of age, having been born on 13 November 1967. He was educated up to secondary school Form 6 level. He had been working as a construction site worker but had become unemployed in September 2019 and at the time of the offence, he was relying on his previous savings to support himself and his girlfriend with whom he was living. He was not a CSSA recipient.
He has two previous convictions, a conviction for theft in 2008 and two convictions for trafficking in a dangerous drug in 2011. For these last two convictions he was sentenced to 5 years and 6 months’ imprisonment imposed on him on 9 November 2011. He was discharged from prison on 15 January 2015. The defendant has no health problems and is not a drug abuser.
Of the three charges the most serious is the 3rd charge. It is agreed by both Ms Chit for the prosecution and Mr Fung for the defence that the first two charges are really only overt acts of the defendant carrying out the terms of the conspiracy that is the 3rd charge. That being so, I intend to use them as evidence relevant to my assessment of the culpability of the defendant in respect of the 3rd charge. Although I shall impose sentences in respect of both the 1st and 2nd charges, I shall order that they be served concurrently with each other and with the 3rd charge.
The law relating to the sentencing of drug trafficking offenders was recently refined and clarified by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2020] 1 HKLRD 290. In that judgment, Macrae VP in giving the judgment of the court, set out a six-step approach to the sentencing of offenders convicted of trafficking in a dangerous drug whilst reaffirming that for this offence, personal circumstances were of far less importance than the sentencing principles of denunciation, deterrence and punishment.
There was, however, still a role for the exercise of sentencing discretion. The goal of the sentencing guidelines was to achieve reasonable consistency in general but not at the expense of preventing justice from being done in a specific individual case. They were not to be regarded as straightjackets by sentencers and indicator for a discretionary element.
With these general principles in mind, I now turn to the six steps laid down in that judgment.
The first step is to identify the relevant guideline band applicable to the quantity of dangerous drug concerned. In respect of the 1st charge, the quantity of cocaine in which the defendant trafficked, the relevant decision is R v Lau Tak Ming and Others [1990] 2 HKLR 370. This case lays down a sentencing band of 2 to 5 years’ imprisonment for quantities up to 10 grammes.
In respect of the 2nd charge, the quantity of heroin narcotic is 167 grammes and Lau Tak Ming is again the relevant guideline case. It lays down a sentencing band of 8 to 12 years’ imprisonment for 50 to 200 grammes. However, Charge 2 also involves another type of drug, namely, ‘Ice’, and the relevant Court of Appeal guideline case is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For 173 grammes of ‘Ice’, the relevant sentencing band is 11 to 15 years’ imprisonment for 50 to 300 grammes.
The second step is to assess the defendant’s role and culpability based upon the evidence. It is not disputed that the defendant’s role was that of a courier transporting drugs around Hong Kong. However, he provided additional services for his clients and for those whom he worked. He received drugs, stored them, weighed them, and packaged them in addition to delivering them. Furthermore, he did so in respect of a variety of drugs. I assess his culpability and role at a higher level than those who merely deliver drugs.
The third step is to identify where in the relevant band the defendant comes, bearing in mind that it might be necessary to go outside that band whether above or below, given the circumstances of the offence and the role of the defendant. In respect of this third step, I do not understand the Court of Appeal to be eschewing the use of mathematics to identify where within the relevant band, weight would suggest the defendant comes. Weight, of course, is just one of the factors, albeit one of the most important factors.
The assessment made in the second step is also relevant to determining where within the band or outside the band the defendant comes. The Court of Appeal reaffirmed that the bands were for the least culpable of drug traffickers and couriers fall into this category.
In respect of this defendant, trafficking in 0.26 gramme of cocaine, the Court of Appeal’s judgment in Lau Tak Ming suggests that the appropriate minimum sentence will be 2 years’ imprisonment. However, I am urged by Mr Fung to reduce this to 16 months to allow for the fact that the quantity was so small. In support of this submission he refers me to the Court of Appeal’s judgment in HKSAR v Lee Yin Yu, CACC 81/2008, (unreported, 25 September 2008). But this submission fails to have regard to the fact that the defendant’s culpability is greater than that of a mere courier. Allowing for that greater culpability, I am of the view that an appropriate starting point for sentence for Charge 1 is 2 years’ imprisonment.
But perhaps the most significant feature of Charge 1 is that in conjunction with Charge 2, it evidences the defendant as trafficking in more than one kind of drug.
For Charge 2, there are two different kinds of dangerous drugs involved. The first is 167.5 grammes of heroin hydrochloride and the second is 173.05 grammes of methamphetamine hydrochloride. As there are two different drugs involved in this charge, I have adopted the conversion test as the most appropriate test for this defendant. If all the heroin is converted to ‘Ice’, then the appropriate sentence for the total amount of ‘Ice’ will be 14 years 2 months and I adopt that figure as the appropriate weight-based assessment.
When I also factor in my assessment of the defendant’s culpability, that figure becomes 14 years and 10 months.
The fourth step requires me to consider whether there are present any aggravating factors which might require me to enhance this starting point. In respect of the 2nd charge, there is the aggravating feature that the defendant was trafficking in more than one type of drug. For this aggravating feature, I enhance his sentence by 2 months and that brings the total figure to 15 years’ imprisonment.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence after trial, bearing in mind that personal circumstances for this offence generally count for little. The one-third discount which an offender receives for his timely plea of guilty will generally encompass the bulk of the mitigating factors available to a defendant, such as prior good character, remorse, and impecuniosity as a motivation for the offence.
After carefully considering the submissions of Mr Fung and the mitigating factors present in this case, I am not persuaded that there is any basis for me to grant the defendant a discount greater than the usual one-third. A one-third discount for Charge 1 brings the sentence down to 16 months’ imprisonment and for Charge 2 to 10 years’ imprisonment.
The sixth step is to stand back and observe the overall sentence to ensure that it is fair, just, and balanced in all the circumstances of the offence and the offender. This may be more relevant to cases involving multiple offences but in my view the Court of Appeal was not limiting the six steps to such cases. The concept of totality ensures that the final sentence is not a crushing sentence but, as I have said, one that is fair, balanced and ultimately just.
In this respect, I am not persuaded that the sentences of 16 months and 10 years would be crushing on this defendant, particularly given that I am ordering that those sentences be served concurrently with each other and concurrently with the sentence for the 3rd charge.
I turn now to the sentence for the 3rd charge.
Both parties recognise that there is very little evidence in relation to this charge. I am limited by what I can infer from the Summary of Facts. The duration of the conspiracy was one month and during that period of time there must have been other occasions when the defendant trafficked in dangerous drugs by the various acts of receiving drugs, storing them, weighing and packaging them, and finally delivering them. How often he did this and in respect of what kinds of drugs and in what quantities are all unknown to me. But clearly, the fact that he was engaged in these activities over a period of one month must make Charge 3 more serious than Charges 1 and 2.
Charge 1 suggests that the defendant was delivering quite small quantities of drugs when he went on his delivery routes but Charge 2 shows that he was storing considerable quantities of dangerous drugs which would suggest that he must have been quite an active trafficker in delivering small quantities of each drug to his customers.
In order to properly reflect his culpability for Charge 3, I assessed an appropriate starting point as being 16 years’ imprisonment. When that figure is discounted by one-third to allow for his plea of guilty, the sentence becomes 10 years and 8 months’ imprisonment.
Applying the six steps to this sentence, I am not satisfied that a sentence of 10 years and 8 months’ imprisonment is an unjust sentence for this defendant for this charge. That being so, that is the sentence I impose on this defendant for the 3rd charge. As I have already indicated, the sentences that I have imposed on him for the 1st and 2nd charges are ordered to run concurrently with each other and concurrently with the sentence for the 3rd charge.
For Charge 1, you are sentenced to 16 months’ imprisonment, for Charge 2, to 10 years’ imprisonment, and for Charge 3, to 10 years 8 months’ imprisonment. All charges are to run concurrently with each other.