The evidence of the prosecution established that on 6 May 2019, a team of police officers conducted observation of the defendant in the Ferry Street area of Yau Ma Tei, Kowloon. They saw the defendant coming out of the building in Man Ying Street. He was carrying a white paper bag in his right hand and he walked towards Ferry Street where he hailed a taxi. After the taxi stopped he boarded it and then travelled in a taxi to Waterloo Road.
Police officers followed the taxi for about 15 minutes and when it stopped outside No. 67D Waterloo Road, police vehicles parked themselves in front of and behind the taxi, thereby preventing it from leaving. The police officers approached the taxi and asked the defendant to alight from it. When he did so they searched the bag that he was carrying and found within it the dangerous drugs the subject of the charge.
In response to being arrested and cautioned, the defendant said: “Ah sir, the three blocks of heroin were to be delivered by me to customers for a male called Dai Song. On each occasion, I would only get $3,000 as a reward”.
Subsequently, the defendant was taken to Hung Hom Police Station where a video-recorded interview was conducted with him. In this video-recorded interview, the defendant said that he came to know a Chinese person by the name of Dai Song who was a loan shark and from whom he had borrowed money. He said he had no means of contacting this person and it was this person who would contact him whenever he wanted the defendant to repay the loan or the interest on it. This person, the defendant said, asked him to deliver the white paper bag and told him that if he agreed to do so he would be paid $3,000 which Dai Song would deem as repayment of the loan.
In his interview, the defendant was asked by the interviewing officer what he meant by helping Dai Song to deliver to customers and the defendant responded: “He just said told me to collect it from the bakery in that Man Wui Building and after it was given to me, taxi fare would be reimbursed to me and I took a taxi straight to the ball court on Wong Chuk Street. He said that to give - someone would ask you for it”.
An important element in the defence case and relevant also to his sentencing was his undisputed claim that he was a police informant. All the criminal activities on which he provided information to the police were activities of a drug-related nature. Notwithstanding that he had an in-depth knowledge of drug trafficking, he claimed to have been deceived by a drug trafficker into carrying drugs on his behalf. By their verdict, the jury found this to be not credible.
The defendant’s counsel, Mr Nelson Lam informs me that the defendant was born on 12 April 1951 and so is now 70 years of age. He had a rather unhappy childhood as he was sold by his parents to the Yip family when he was only 1 year of age. Consequently, he has no recollection of his biological parents. His adoptive parents treated him well but it appears as though his adoption may have caused him to be insulted and bullied as a child.
After finishing Form 5, he worked his way up from a messenger to an audit clerk as he went to evening school to study accounts. His good command of both Chinese and English enabled him to work in a clothing factory where he excelled himself. He was earning almost $30,000 a month and was able to take care of his parents. Unfortunately, his father died in 1979. The defendant married in 1981 and a son was born to this relationship in 1982. However, the marriage subsequently ended in divorce.
In 1984, the factory that he was working in was facing debt litigation and both sides engaged triads in reaching a settlement. He was impressed by the way the triads negotiated a non-violent resolution of the litigation and he was foolish enough to join them as a low-ranking member.
The defendant’s criminal record dates from 1987 when he was convicted of managing an unlicensed massage establishment. The next occasion he appeared before the courts was not until 2004 when he was convicted of dealing with dutiable goods. He was convicted of further offences relating to dutiable goods in 2005, 2006, and 2007. In 2008, he was convicted of managing a vice establishment. For all these offences, he was never sentenced to anything other than non-custodial or short custodial sentences.
In 2009, he was convicted of two offences of trafficking in a dangerous drug and sentenced to a total of 14 months’ imprisonment. Then, in 2013, he was again convicted of trafficking in a dangerous drug and this time received a sentence of 3 years’ imprisonment. It was after being discharged from this last sentence of imprisonment that he committed the current offence.
The defendant claims that on his release from gaol he was impecunious and so borrowed money from the person he called Dai Song. Once he became indebted to this person, he became vulnerable to his demands and has ultimately led him to commit the current offence.
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 [2021] 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 a 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 straitjackets and did cater 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 assess the gravity of the offence, and as Macrae VP said in Herry Jane Yusuph at page 319, paragraph 57 of the report, this is done by:
“Focusing on the harm caused or created by the offence, which is principally gauged by the type and quantity of the particular drug concerned. Accordingly, the first step when approaching sentence for an offence of trafficking in a dangerous drug is for the judge to identify the relevant guideline band or bracket applicable to the quantity of drug concerned.”
The count in the indictment concerns only heroin hydrochloride and the quantity of this drug in which the defendant trafficked was 827 grammes. The relevant sentencing guideline decision for heroin is HKSAR v Abdallah [2009] 2 HKLRD 437. The relevant Abdallah sentencing band for 827 grammes of narcotic is 20 to 23 years’ imprisonment for quantities of 600 to 1,200 grammes.
The second step is to assess the defendant’s role and culpability based upon the evidence. In Herry Jane Yusuph at page 319, paragraph 59, Macrae VP said on the sentencing guidelines:
“The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper. That is the person who is delivering, distributing, or conveying the drugs in question for a dealer or storing a consignment of drugs on behalf of himself or someone else.”
Consequently, it will not be possible to properly apply the guidelines until the court takes a view of the role and the culpability of the defendant. It is not disputed that the defendant’s role was that of a person who agreed to transport dangerous drugs on behalf of a person who trafficked in dangerous drugs and to deliver the dangerous drugs in accordance with the instructions that he received. I assess his culpability as trafficker at the same level as a courier.
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. This initial or preliminary step in the determination of an appropriate sentence is described by Macrae VP as a starting point in the calculation of the defendant’s sentence as opposed to the notional sentence after trial. The starting point is identified by reference to the quantity of the dangerous drugs and the role and culpability of the defendant. The notional sentence after trial will be the figure that is reached after consideration is given to whether there are present any aggravating factors.
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.
Applying the relevant Abdallah sentencing band of 20 to 23 years’ imprisonment for quantities of 600 to 1,200 grammes produces a mathematically calculated weight-based starting point for 827 grammes of narcotic of 21 years and 1 month’ imprisonment. The figure of 21 years and 1 month is agreed by the parties as the correct mathematical calculation.
Taking into account my assessment of the defendant’s role and culpability and the weight of the heroin in which he trafficked, I am of the view that there is no justification for departing from the mathematically calculated place within the relevant band.
The fourth step requires me to consider whether there are present any aggravating factors which might require me to enhance this starting point. After completing this fourth step, I will arrive at the notional sentence after trial. If there are no aggravating factors, then the starting point will become the notional sentence after trial.
The defendant appears before me as a person who has previous convictions for trafficking in a dangerous drug. This is the only aggravating factor. The presence of this aggravating factor would suggest that the defendant would need additional deterrence to persuade him to give up his life of trafficking in dangerous drugs and to retire to a law-abiding existence. However, given the defendant’s age, I have decided that there is no real likelihood of him reoffending and so exceptionally, I shall not enhance the starting point for this aggravating factor. Consequently, the notional sentence after trial becomes 21 years, 1 month’ 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. In Herry Jane Yusuph, Macrae VP discussed the new sentencing regime laid down by the Court of Appeal in its decision in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 and the reference in that and other cases to the one-third discount for a plea of guilty being the “high watermark” for the discount to which a defendant is entitled on a plea of guilty. He said at page 326, paragraph 77:
“Although the ‘high watermark’ reference to discount ‘normally’ or ‘usually’ applies to the vast majority of cases in which a plea is entered at the earliest opportunity, ‘unless there are very special factors to be taken into account’, 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.”
As the defendant was convicted after trial, he is not entitled to the usual one-third discount. As he is a person with many prior convictions, there is little that can be said for him in mitigation. He is elderly, but this cannot be a mitigating circumstance as he well-knew the consequences of his actions. He relies on his assistance to the authorities as a registered informant in order to obtain some discount for this high starting point.
Assisting the authorities is recognised by the courts as a special factor to be taken into account in a defendant’s favour. Notwithstanding that he was convicted after trial, the defendant is entitled to a discount for the assistance he provided to the police.
In assessing the value of that assistance for the purpose of determining an appropriate discount, I take into account that no prosecution resulted from that assistance and that the defendant did receive some small financial reward for it. Nevertheless, the police have never lost faith in him and did not characterise him as unreliable. I also accept that providing the assistance that he did at times exposed him to danger and the risk of harm. For his assistance to the police, I discount his sentence by 18 months. This produces a sentence of 19 years and 7 months.
The sixth step is to stand back and observe the overall sentence to ensure that it is fair, balanced and just in all the circumstances of the offence and the offender. This is particularly relevant to cases involving multiple offences where the principle of totality comes into play but that principle is relevant to any sentence which is the product of a process. At the end of that sentencing process, the judicial officer should stand back and objectively examine his proposed sentence to ensure that it is not a crushing sentence but as I have said, one that is fair, balanced and ultimately just.
Mr Lam has emphasised the defendant’s age and the risk that he may not live long enough to enjoy his freedom again. The defendant is 70 years of age and a sentence as long as 19 years and 7 months will mean that even if he receives a further discount from the Commissioner of the Correctional Services for good behaviour while serving his sentence, he will still not be discharged from custody until he is well into his 80s.
It is, of course, quite possible that he will not live beyond his sentence and will end his days in prison custody. It seems to me that in determining whether the sentence is a crushing one on him, I must have regard to this possibility.
In the unusual circumstances of the present case, determining whether a sentence of 19 years and 7 months is a fair, balanced and just sentence is not an easy task. I must bear in mind that a severe or harsh sentence is not, by that reason alone, necessarily unfair, imbalanced and unjust. I must also bear in mind that the sentence I impose must still contain the elements of denunciation and deterrence and be appropriately punitive.
Tailoring the sentence to the circumstances of this offender, without undermining the sentencing principles relevant to this offence, I am of the view that a fair, balanced and ultimately just sentence for this defendant is 18 years’ imprisonment. Such a sentence still contains sufficient elements of denunciation and general deterrence and is still sufficiently punitive for the offence of which the defendant has been convicted.
I therefore sentence the defendant to 18 years’ imprisonment.