The defendant pleaded guilty to this offence at the first opportunity in the Magistracy and was committed to the Court of First Instance for sentence. At the time of his plea, he also admitted the truth of the summary of facts, which set out the circumstances of the commission of his offence.
Before me, he confirmed both his plea and his admission of that summary of facts.
The summary of facts reveal that on 14 July 2020 at about 4.08 pm, the police saw the defendant near Yen Chow Street and Yu Chau Street in Sham Shui Po, Kowloon. He was observed to be furtively looking around when he entered a rear lane carrying a green bag. The police officers saw the defendant placing this green bag on some miscellaneous items in the area and immediately intercepted him. When the police officers searched the green bag, they found in it an electronic scale and two packets of dangerous drugs. One packet contained 27.8 grammes of a crystalline solid containing 6.99 grammes of methamphetamine and the other bag contained 27 grammes of a crystalline solid containing 10.4 grammes of methamphetamine hydrochloride.
In these reasons for sentence, I shall refer to the methamphetamine and the methamphetamine hydrochloride by their commonly known name of ‘Ice’.
When the defendant was cautioned at the scene, he claimed that he bought the ‘Ice’ for his self-consumption.
In a subsequently conducted video record of interview, the defendant admitted that on the day of his arrest he had bought the two bags of ‘Ice’ from a woman at about 3.45 that afternoon for a price of $14,000. This purchase would have been only about 20 minutes before his interception by the police. He said that he had met this woman the night before and they had agreed to meet up today for the transaction. He claimed he had been a drug addict for 12 years and would consume about half a gramme of ‘Ice’ four to five times a day. He said the electronic scale was given to him by the woman from whom he bought the ‘Ice’.
The defendant is a CSSA recipient and has no fixed place of abode.
The summary of facts concluded with an admission by him that he was in possession of the ‘Ice’ that was seized from him for the purpose of unlawfully trafficking in it.
The defendant’s antecedent report reveals that he was born in Hong Kong on 22 February 1973 and so is now aged 48. He was educated up to Form 3 and has previously worked as a waiter on a monthly income of $12,000. At the time of his arrest, he was relying on his CSSA allowance of $2,200 per month. The defendant has been a drug addict since aged 35. He is single and has no fixed place of abode.
The defendant has an extensive criminal record dating from 1990 when he was sentenced to training centre for offences of robbery and theft.
He was first sentenced to imprisonment in 1993 for 3 months for the offence of theft. At that time, he was also found in possession of dangerous drugs, for which he was fined.
In 1994, he was again found in possession of dangerous drugs and sentenced to DATC.
The next time he was before the courts was in 2002, again for possession of a dangerous drug, for which he was sentenced to 4 months’ imprisonment. At the same time, he was convicted of possession of an ID card relating to another.
In 2004, he was convicted of offences of claiming to be a member of a triad society, conspiracy to blackmail, and theft, and was sentenced to imprisonment of 32 months.
In 2006, he was found in possession of dangerous drugs and was again sentenced to DATC.
In 2009, he was convicted of conspiracy to wound with intent to do grievous bodily harm and sentenced to 4 years’ imprisonment.
In 2012, he was convicted of theft by shoplifting and sentenced to 3 months’ imprisonment.
In 2014, he was convicted of a number of offences, one of which was possession of dangerous drugs, for which he was sentenced to prison for 4 months.
The defendant’s counsel, Mr Victor KC Lee, informs me that the defendant was educated only up to Form 3 and at the time of his arrest was engaged in casual work, earning about $3,000 per month. He has two younger brothers aged 46 and 36. He was previously married but is now divorced.
Mr Lee asked me to note that the defendant claims that he has been a drug addict for some time and that his urine test conducted on his entry into Lai Chi Kok Remand Centre supported this claim.
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 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 dangerous drugs 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 ‘Ice’ and the quantity of this drug in which the defendant trafficked was 17.39 grammes. The relevant sentencing guideline for ‘Ice’ is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The relevant sentencing band for 17.39 grammes of ‘Ice’ is 7 to 11 years’ imprisonment for quantities of 10 to 70 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 of 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 the 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 culpability of the defendant.
At page 320, paragraph 61 of Herry Jane Yusuph, Macrae VP also made it very clear that a person directly involved in the selling of drugs possessed a higher level of culpability than the mere courier or storekeeper. He said:
“However, the defendant who can be shown by admission, or by direct or circumstantial evidence, to be dealing in dangerous drugs to others, sometimes referred to as actual (or direct) trafficking, is not a courier or storekeeper, and is in a more serious position.”
Macrae VP went on to discuss various case authorities and at page 322, paragraph 64, said that the principles which emerged from them were:
“...firstly, that the role and culpability of the trafficker is an important consideration in identifying the starting point for this offence. Secondly, the sentencing guidelines were intended for couriers and storekeepers of dangerous drugs, which includes those who are found dealing with dangerous drugs in circumstances falling short of actual or direct trafficking in the sense of dissemination on the streets. Thirdly, actual or direct trafficking of dangerous drugs to others on the streets is more serious than where a defendant’s purpose cannot be proved or explained.”
I infer from the summary of facts that the defendant, as owner of the drugs, would have trafficked in them by selling them. I therefore find that the defendant’s role was that of a person who purchased dangerous drugs both to sell and to feed his own addiction. The defendant’s culpability is that of a person who is involved in the direct distribution of drugs to the consumer as a street seller of them.
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 ‘Ice’ sentencing band of 7 to 11 years’ imprisonment for quantities of 10 to 70 grammes produces a mathematically calculated weight-based starting point for 17.39 grammes of narcotic of 7 years and 5 months’ imprisonment. This figure of 7 years and 5 months 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 ‘Ice’ in which he trafficked, I am of the view that I must depart from the mathematically calculated place within the relevant band and adopt a higher starting point. I adopt a starting point of 7 years and 9 months’ imprisonment.
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 possession of but not trafficking in a dangerous drug and for a multitude of other offences. 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 crime and to retire to a law-abiding existence.
However, I note that all his recent convictions are essentially drug related but do not involve trafficking in a dangerous drug. I will not on this occasion therefore enhance the starting point for his sentence on the basis of his criminal record.
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 his 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.”
This defendant has made a claim that part of the drugs was for his own consumption, although he accepts that it would not have been a significant proportion of the drugs.
It is of course common for drug addicts to deal in drugs in order to be able to feed their addiction, and there is certainly no doubt that this defendant is a drug addict. But, in order for such a claim to operate as a mitigating factor, it must be in respect of a significant proportion of the drugs found in the defendant’s possession.
In respect of this defendant, I do not find such a claim to be credible. This defendant was unemployed and effectively penniless. He had so little money that he had no fixed abode. I have no doubt that he would have consumed some of the drugs but I am not persuaded that it would have been a significant proportion of the drugs.
However, I bore his assertion in mind and took it into account when assessing the defendant’s role and culpability and adopting a starting point of 7 years and 9 months’ imprisonment.
This defendant is entitled to his one-third discount for pleading guilty, but I cannot see that there are present in his case any “very special factors” that I should take into account. I shall not therefore award him any discount greater than one-third.
A one-third discount of 7 years and 9 months produces a final sentence of 5 years and 2 months’ imprisonment.
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. This is not an easy task, as the sentence must still contain the elements of denunciation and deterrence and be appropriately punitive. I must also bear in mind that a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced and unjust.
After giving this matter anxious consideration, I am of the view that it cannot be said that a sentence of 5 years and 2 months’ imprisonment is not a fair, balanced and ultimately just sentence. That being so, this is the sentence that I impose on this defendant.
Mr Lam, for the offence of unlawfully trafficking in a dangerous drug, I sentence you to 5 years and 2 months’ imprisonment.