The defendant pleaded guilty to the charge before a magistrate, as a result of which he was committed to the High Court for sentence.
He came before me on 11 November 2020 for sentence, having confirmed his plea and admission to the Summary of Facts dated 3 August 2020 read out to him in court. The case was adjourned until today for background report. I have also asked the parties to address me on the issue of the defendant’s disclosure of his crime before arrest.
The Facts
At about 10.43 pm on 16 January 2019, a number of police officers were travelling along Fuk Hang Tsuen Road, they spotted the defendant walking towards a blue private car parked at a roadside and another male, Cheung Chun-loi, walking along the pedestrian pavement of the same road, heading towards their direction. The police felt suspicious and followed the defendant and Cheung. They subsequently intercepted them for investigation.
A search was performed on the defendant. Nothing illegal or suspicious was found. During the search, the defendant told the officers not to arrest him and to give him a chance. The defendant then admitted under caution that he knew he was wrong, and asked the police not to arrest him; that he was instructed by Cheung to come over to pick up the “stuff”; and he knew that the black plastic bag contained a dangerous drug.
The police thereafter found a black plastic bag under a tree located near the blue car. The bag contained five transparent resealable plastic bags containing 121.8 grammes of a solid containing 76.4 grammes of cocaine.
At around 11.20 pm, the defendant was arrested for trafficking in a dangerous drug. The defendant further admitted under caution that he was wrong, he was greedy for money, and therefore he worked for Cheung.
At the material time, the defendant was in possession of HK$2 and one mobile phone.
The estimated street value of the drugs for this count was around HK$150,000.
The defendant now admits and accepts that at the material time he, together with Cheung, attempted to unlawfully traffic in a dangerous drug.
Background Report
According to the background report, the defendant was born in Hong Kong, and brought up in a working-class family. His parents were divorced. His father worked as a taxi driver and his mother a nurse who worked long and unstable hours. He was brought up by his mother with the assistance of maternal grandmother during his childhood. He was living with his mother and her boyfriend, Mr Chung, since the age of 11. He received education up to Form 2. He quitted school due to poor academic performance and attended Teen’s programme at Vocational Training Council Tuen Mun School in September 2017. He later started open employment at the age of 16. He had previously worked as a storekeeper, a warehouse worker at the airport and an office assistant. The defendant mixed with undesirable peers in secondary school. He had taken cannabis at the age of 17 for six months. The defendant revealed in the background report that on 16 January 2019, his friend Cheung asked him to pick up the dangerous drug and he would get $300 in return. He said he did not know the quantity of the drugs and he just followed the instructions of Cheung. The defendant had cooperated with the police from the time of arrest and told the police all he knew. He attributed his wrongdoings to his greediness and foolishness. The report stated that the defendant showed remorse and pleaded for a lenient sentence. The report concluded that the defendant had maintained a stable relationship with his family and was well-behaved at home. Both his mother and Mr Chung commented that the defendant is a good-natured person and attributed the present offence to his simple mind and vulnerability to ill influence of his peers.
Mitigation
The defendant is now 18 years of age. He was 16 and a half years old at the time of the offence. He has no prior conviction in Hong Kong.
In mitigation, counsel informed the court that the defendant had quitted school at the age of 15. He had been in gainful employment to support himself whilst receiving modest amounts of pocket money from his family from time to time. The defendant grew up in a single-parent family.
Counsel informed the court that the defendant had become associated with persons who had bad influence. Counsel urged this court to exercise leniency and to take into account his young age. He also stressed that the defendant is deeply remorseful.
I have received and considered mitigation letters from the parents of the defendant, his grandmother, Mr Chung, his uncle and aunt, his teacher and his godmother.
Dealing first with the letters of his parents, the mother blamed herself for the conduct of the defendant and for not giving sufficient parental care and love as she had to work shifts in the hospital which prevented her to take care of him personally. The defendant’s mother wrote a heartfelt letter expressing a lot of regret and reflection upon her past memories with her son. Both of his parents tell me that the defendant has reiterated his remorse for his conduct and consequences for his parents. They say, and parents are usually a pretty good judge of this, that they think he is deeply remorseful for his crime. Their letters conclude with a plea to receive as low a sentence as is possible.
The letters submitted from his relatives, aunts and teacher all show that the defendant is kind-hearted and gentle in nature, a different person than the one who decided to commit this crime. His godmother also expressed that the defendant had been involved in volunteer work, visiting elderlies living alone, completing tasks assigned by volunteer organisation. His nephew wrote that the defendant’s insecurity made him dependent on friendship.
I am sure that the defendant has learnt a bitter lesson from his conduct and in view of the sentence which is my duty to pass upon him, he will suffer the consequences of his mistakes. I have no doubt that he now realises the impact that he has had on his parents and himself. I expressly hope that while he is in prison, he will continue his education or training to become self-sufficient, and that he, together with his family, must exert every possible effort in that direction, to break the vicious cycle into which this young man has become entrapped.
In mitigation, Mr Lai submits that the defendant had received limited education and mixed with the wrong crowd. He maintains the only reason he was susceptible to Cheung’s suggestion to commit the present offence was because he wanted to make more money in order to alleviate the financial burden of his family. He was supposed to receive $300 as a reward upon successful retrieval of the drugs. Mr Lai also submits that it was out of his immaturity and naivety that brought him down this unfortunate path.
In sentencing, I have considered the whole circumstances of the case, including its nature and facts, the role and culpability of the defendant, the type and quantity of the drugs, the background of the defendant and mitigation put forward on his behalf.
Sentencing Approach
Since the adjournment, the Court of Appeal handed down a judgment in HKSAR v Herry Jane Yusuph (CACC 93/2019, [2020] HKCA 974) on 26 November 2020 which changes the way one looks at sentencing in drug trafficking cases, and this judgment is to the advantage of the defendant.
The Court of Appeal stated at paragraphs 39 and 46 that sentencing guidelines are not fixed, compulsory or arbitrary straitjackets nor should they be slavishly applied. The court must retain a discretionary element in sentencing for these offences.
The Court of Appeal sets out the following steps in approaching sentence for an offence of trafficking in dangerous drugs.
Relevant Guideline Band
First, to identify the relevant guideline band (or bracket) applicable to the quantity of the drug concerned.
Thus, for 76.4 grammes of cocaine narcotic, the relevant guideline band under R v Lau Tak Ming [1990] 2 HKLR 370 would be between 8 and 12 years’ imprisonment after trial. The correctness of this guideline to cocaine was confirmed in HKSAR v Abdallah [2009] 2 HKLRD 437. The facts of this case are at the lower end of the guideline band.
The Role and Culpability of the Defendant
The second step is an assessment of the role and culpability of the defendant based upon the evidence before the court. As stated, the guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper. In Herry Jane Yusuph, the Court of Appeal stated at paragraph 59 that:
“...it is important that the term ‘courier’ should not be stretched, simply because it is recognised to be the lowest rank in the trafficking hierarchy upon which the guidelines are based, to embrace the defendant whose actions do not come within this term, in the sense in which it is meant by the authorities.”
The Court of Appeal also stated at paragraph 60 that occasionally a defendant’s actions may fall short of acting as either a courier or a storekeeper in its intended sense. The court gave an example of the case of HKSAR v SK Wasim [2020] 2 HKLRD 1139.
According to the Agreed Facts, the defendant was used by others to go to that location to look for a black plastic bag. He admitted under caution that he was instructed by Cheung to come over to pick up the “stuff” and Cheung told him to collect a black bag near the blue car which contained drugs. The role of the defendant is relatively minor. The defendant was not a courier in the proper sense in which that term is intended in the authorities, involving delivering or distributing or conveying the drugs for a dealer, or storing the consignment of drugs on behalf of someone else.
Having assessed the defendant’s role and culpability, the third step is to identify where in the relevant band of the guidelines the defendant comes. The Court of Appeal stated at paragraph 43 that “where a greater (or lesser) role or purpose can be demonstrated on the facts of a particular case, the starting point for sentence can be appropriately increased (or decreased)”. And at paragraph 69 of the judgment:
“...it may, in appropriate circumstances, be necessary to go outside that band (whether above or below), given the particular circumstances of the commission of the offence and the role of the defendant.”
In all the circumstances and the facts of this case, I will go below the relevant guideline band and assess the starting point as 7 years’ imprisonment.
There are no aggravating features in this case.
Mitigating Factors
The next question is the mitigating factors. The factors I took into account are:
First, the defendant’s disclosure led to the police’s action to search the vicinity of the blue car which led to the discovery of the black bag containing the subject dangerous drugs. The information he disclosed was obviously reliable and useful. At the time, the police was conducting an anti-burglary patrol. They did not even know there were dangerous drugs.
Second, the defendant fully cooperated with the police from the outset by telling them the crime he committed.
Third, the defendant provided assistance to the authorities. He changed the investigation direction from one of tampering with a vehicle to a case of dangerous drug. Based on the materials disclosed in the supplemental defence written submissions dated 23 November 2020, the police officers searched near the blue vehicle and found the black bag about nine minutes after the defendant’s admission. The defendant’s admission had no doubt expedited the police action in proactively looking for a black bag near the blue car. The screen captures from the car camera videos showed that the police officer used about six minutes in the vicinity of the blue vehicle to locate the bag.
Having considered the available photo evidence presented by the defence, without the disclosure by the defendant of the existence of dangerous drugs, it appears that the police would not have proactively and expeditiously detected the dangerous drugs in the vicinity in view of the dark environment.
The prosecution submits that as a general principle, the defendant’s confession of guilt is generally subsumed in the one-third guilty-plea discount. However, in HKSAR v Ma Ming [2013] 1 HKLRD 813 cited by the prosecution, the Court of Appeal stated at paragraph 32 that:
“When dealing with individual cases and when considering the totality of the sentence, the court, in exercising its discretion, can take into account the fact that the frank confession of the defendant provides the only evidence which supports the charge... and therefore make minor adjustments to the total sentence. To this we do not object.”
In Z v HKSAR [2007] 10 HKCFAR 183, the Court of Final Appeal observed at paragraph 15 that “there is therefore no justification for drawing a curtain between pre-arrest and post-arrest assistance and for imposing a bar against recognition of the former”. The court should take into account matters when deciding whether the assistance given by the defendant should merit a discount, and if so, its extent included the nature and extent of the assistance.
For the above reasons, the assistance given to the police by the defendant should be recognised.
Lastly, the defendant was at a very young age at the time he committed the offence, ie 16 and a half years old. He was immature, naive and committed the offence out of foolishness. As was recognised by Mr Justice Macrae VP in HKSAR v Dhaliwal Jaspreet Kaur & Others [2019] 5 HKLRD 428, [2019] HKCA 1205 at paragraph 36 that:
“One should remember that an offender’s young age holds out the hope of reform and rehabilitation, which can be easily undermined by a crushing sentence of imprisonment in an adult person. The goal of ensuring that a young offender does not proceed down the path of crime can, for certain cases, be more effectively achieved by the lighter touch of a more lenient and compassionate sentence than by a heavier hand of a punitive and deterrent one.”
Further, as stated in the judgment of Herry Jane Yusuph at paragraph 77, “the one-third discount was not intended to be an impenetrable ceiling beyond which a judge cannot go if he has good reasons in the proper exercise of his discretion for doing so”.
The defendant has pleaded guilty at the earliest possible moment. He is entitled to a one-third discount of his sentence. I have taken into account the mitigating factors mentioned above, including his age at the time of the offence and his assistance to the authorities, I consider that the defendant should be afforded 40 per cent discount.
Conclusion
Allowing the 40 per cent discount from 7 years’ imprisonment, the sentence for this count is 4 years and 2 months’ imprisonment.
Mr Yim, please stand up. For the matters I have mentioned, I sentence you to an imprisonment term of 4 years and 2 months’.