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 a 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 at 1832 hours on 23 January 2019, police officers entered Flat A7 on the 25th floor of the Skypark Building on the authority of a search warrant. They gained entry to the flat when the door of it was opened to allow entrance of a visitor. Within the flat, there were present the defendant, his wife, another woman and a newly arrived woman whom the police had followed into the flat.
The drugs that are the subject of the charge were found on a table in the living room of the flat and in the right rear pocket of a pair of trousers that were hung outside the wardrobe of a bedroom. The drugs found within the pair of trousers were a plastic bag containing 2.95 grammes of a mixture containing 2.42 grammes of heroin hydrochloride, a plastic bag containing 2.97 grammes of a solid containing 1.77 grammes of cocaine. Apart from the drugs, there were straws, tin foil, inhaling devices, weighing scales and lighters.
When the defendant was arrested and cautioned at the scene for keeping a divan, he said, “Ah sir, the No. 4 heroin and the ‘Ice’ drug in my house, together with the ‘Ice’ pots and lighters, are all mine. I only use them for entertaining the friends and having dangerous drugs with them.”
The cocaine had an estimated street value of $4,966 as powder or $5,638 as crack cocaine, and the heroin had an estimated street value of $2,162.
The Summary of Facts concluded with an admission by the defendant that at the time of the offence he was knowingly in possession of the dangerous drugs seized for the purpose of unlawful trafficking.
The defendant’s antecedent report reveals that he was born in Hong Kong on 22 December 1959 and so is now aged 61. He was educated up to university level and obtained a bachelor degree in Australia. The defendant was employed as a wholesaler in the seafood industry with a monthly income of $15,000.
The defendant has a criminal record which I shall discuss in greater detail later in these reasons for sentence. Prior to this offence, he had never been in prison and had only received fines for two offences of gambling in a gambling establishment but they were back in 1979 and 1981 and more recently for possession of equipment fit and intended for smoking or inhaling a dangerous drug. However, on 24 January 2020, he was sentenced to 8 months’ imprisonment for three counts of offering an advantage to a public servant.
The defendant’s counsel, Mr David Boyton, informs me that the defendant moved to Australia on 4 October 1981 and obtained a degree in hotel management from a university in Melbourne, Australia. Thereafter, he operated a Mexican restaurant in that city before returning to Hong Kong in late 2015. He is an Australian citizen and travels between Hong Kong and Australia where he continues to have legitimate business interests importing seafood from that country for resale in Hong Kong from his business in Lei Yue Mun. His seafood supply business provides him with a minimum income of $15,000 per month. In addition, his wife is involved in the rental and subleasing of property.
Since his release on bail, the defendant had been living with his wife in Hunghom Estate and is still involved in the seafood trade in Lei Yue Mun.
Mr Boyton handed to me a number of documents. One is a letter from the defendant’s wife and the other documents are certificates of appreciation from various charitable organisations for the contribution the defendant has made to them by volunteering his services on different occasions. Mr Boyton urges me to regard these documents as evidence of the defendant’s remorse and of his desire to live a more responsible and law-abiding life.
The letter from the defendant’s wife provides me with some understanding of the defendant and some insight into him as a person. The defendant’s wife has known him for 20 years and been married to him for 14 years. They do not have any children. His wife feels some degree of responsibility for the defendant’s behaviour as she was too busy at work to properly attend to his needs. She says that the immense stress of living in Hong Kong and the defendant’s depressed mood led to his addiction to drugs. However, she says that the defendant’s time in prison has been a hard lesson for him and caused him to reflect on himself. She says he has worked hard and actively participated in his charitable work, “helping those in need and giving back to the society”.
She looks forward to returning to Australia to live out their days there after this case is finished. To this end, she urges me to impose a lenient sentence on the defendant.
The defendant has been in custody from his arrest on 21 January 2019 until 7 July 2020 when he was granted bail. However, on 24 January 2020 the defendant was sentenced to 8 months’ imprisonment for three corruption offences and completed service of this sentence on 4 July 2020. Thus, most of the period he spent in prison in 2020 has in fact been for the purpose of serving this sentence. I shall return to this matter later in these reasons for sentence but suffice it to say, at this stage, that Mr Boyton asks me to have regard to the fact that because of the delay in dealing with the present charge, the defendant has been denied the opportunity to have this sentence taken into account on the issue of totality.
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 sentence, 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 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 heroin and cocaine with some trace residues of ‘Ice’. As the trace residues of ‘Ice’ are so small, Mr Boyton invites me to ignore them for the purpose of sentencing the defendant, and Ms Lau very responsibly and fairly agrees with that course. Putting the trace residues of ‘Ice’ to one side, the total quantity of heroin and cocaine that is the subject of the charge amounts to 5.73 grammes. The relevant sentencing guideline decision for heroin and cocaine is HKSAR v Abdallah [2009] 2 HKLRD 437. The relevant sentencing band for 5.73 grammes of narcotic is 2 to 5 years’ imprisonment for amounts up to 10 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 the 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, it was 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.”
It is not disputed that the defendant’s role was that of a person who was providing his premises as a place in which dangerous drugs could be consumed. Mr Boyton argues that this is a case solely of social trafficking, although he accepts that on current Court of Appeal authority, that is not a mitigating factor. Mr Boyton says that the defendant was a heavy user of all three types of dangerous drug found in his residence and that he enjoyed the company of other drug users. He was not operating a divan, Mr Boyton says, but was merely consuming drugs with others in his home and because he could afford to be generous to others, he provided them with drugs to consume.
I accept that the defendant was making available these premises on a non-commercial basis and was not operating a divan. I accept that the defendant was consuming drugs in the privacy of his own home and in the company of persons he considered friends. This was an entirely social occasion. Mr Boyton urges me to assess the defendant’s culpability at a level equal to or lower than that of the courier or storekeeper.
Notwithstanding these circumstances, the defendant was nevertheless directly involved in the dissemination of a variety of drugs to others and in providing a place for their consumption. By providing the drugs free of charge and by having available a variety of drugs and a place in which they could be consumed in privacy, his actions were only likely to encourage rather than discourage drug use by others. In my view, this places him at a more serious level of culpability than the mere storekeeper or 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 heroin sentencing band of 2 to 5 years’ imprisonment for quantities up to 10 grammes produces a mathematically calculated weight-based starting point for the 5.73 grammes of narcotic of 3 years and 8 months’ imprisonment.
Taking into account my assessment of the defendant’s role and culpability and the weight of the narcotic in which he trafficked, I am of the view that I must depart from the mathematically calculated place within the relevant band. To allow for the greater level of culpability of this defendant, I adopt a starting point of 3 years and 10 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 but they are not significant other than the 2016 conviction for possession of dangerous drug equipment. That conviction shows that the defendant has been a drug user for some years, and further evidence of his drug use is established by the fact that he tested positive for amphetamine, cocaine and opiate on his admission to Lai Chi Kok Reception Centre. I do not regard his criminal record as an aggravating factor.
However, there is the aggravating factor of multiple drugs being trafficked by this defendant and for this factor I enhance the starting point by 2 months. There are no other matters that could be regarded as aggravating factors. This results in a notional sentence after trial of 4 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. 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.”
This defendant has made a claim that part of the drugs was for his own consumption. 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, there is certainly no doubt that he is a drug addict. I have no doubt that he would have consumed some of the drugs but the question I must address is whether it would have been a significant proportion of the drugs.
I am told by Mr Boyton that the defendant was not only a user of multiple types of drugs but that he would consume all of them in the course of a single day and consume them in quite heavy doses. He has been a drug addict since at least 2016 when he was convicted of being in possession of a pipe for use in the consumption of a dangerous drug.
The Summary of Facts makes it clear that there were effectively two locations within the defendant’s flat in which dangerous drugs were found. The first location was a table within the living room and the second location was the right rear pocket of the defendant’s trousers which were hanging outside the wardrobe of the bedroom. It is the defendant’s assertion that the heroin and cocaine found in his trousers, though available for sharing, was intended to be consumed solely by himself.
Of the total amount of 5.73 grammes of narcotic found in the defendant’s flat, the amount of narcotic seized from his trousers came to 4.19 grammes. Although Mr Boyton readily accepts that given the defendant’s generous attitude to the sharing of his drugs with his friends, there was a high degree of risk that part of these drugs would also be socially trafficked.
I accept that the defendant was a heavy consumer of drugs within the premises and that the drugs found in his trousers would have been for his own consumption and that the drugs found in his trousers constitute a significant proportion of the drugs found within his flat. However, I also have no doubt that there was a fairly high risk that some of these drugs would have been socially trafficked. For the claim of self-consumption I award the defendant a discount of 18 per cent. In addition, the defendant is entitled to his one-third discount for pleading guilty.
Reducing the notional sentence after trial of 4 years’ imprisonment by 18 per cent produces a figure of 3 years and 3 months which must then be discounted by one-third to allow for the plea of guilty. A one-third discount of 3 years and 3 months produces a final sentence of 2 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.
Relevant to this task, Mr Boyton asks me to have regard to the fact that the defendant was sentenced to 8 months’ imprisonment for three counts of offering an advantage to a public servant, contrary to section 4(1) of the Prevention of Bribery Ordinance, Cap 201. These offences stem from the defendant’s misconduct in offering drugs at a discounted price to a police officer. They are not directly related to the current offence but, of course, are related to his drug addiction and his drug-consumption lifestyle. Had the defendant been sentenced for all these offences at the one time, the sentencing judge would have had regard to the issue of totality. The defendant has been denied that advantage as he has now completed the service of that sentence.
To allow for this factor, I would reduce the sentence of 2 years and 2 months by 6 months, resulting in a final sentence of 1 year and 8 months’ imprisonment. This is a sentence which, in my view, would be a fair, balanced and just sentence for this defendant were it not for one other matter. That matter is the period of time that the defendant has spent in custody awaiting the finalisation of these proceedings. The defendant has effectively served a sentence of 1 year and 6 months on the assumption that whilst imprisoned he would receive credit for good behaviour from the Commissioner for Correctional Services.
Given the delay that has been caused in bringing these proceedings to finality and given the defendant’s age and the way he has turned his life around since his release from prison and given the support he is going to receive from his wife, I am persuaded that I should extend further leniency to the defendant so as to ensure that he does not have to return to prison to serve what small amount would have remained of the sentence.
I therefore sentence the defendant to a term of imprisonment as will enable his immediate discharge from custody.
Mr Wong, I have decided to extend you unusual leniency. You have an opportunity now to get your life back on track. Do not waste that opportunity. You have the support of your wife. Value that. The sentence of the court effectively allows you to be released from custody but there may be need for you to remain with the CSD while that is processed.