The particulars of the offence alleged are that on 14 October 2019, at Room C, Flat 4, 6th Floor, Shing Tak Mansion in Peace Avenue, Kowloon, Hong Kong, unlawfully trafficked in a dangerous drug, namely, 3.457 kilogrammes of a mixture containing 3.038 kilogrammes of heroin hydrochloride.
He was arrested and brought before a magistrate. And on 3 May 2021, he pleaded guilty before Mr Daniel Tang, sitting as a permanent magistrate sitting at the Eastern Magistrates’ Court. The accused confirmed his plea and the Summary of Facts through counsel. Accordingly, he is convicted.
The Admitted Facts
The facts admitted are that on the afternoon of 14 October 2019, an anti-narcotics operation was conducted by the police at Shing Tak Mansion. At 5.59 pm on that day, the police noticed the accused walked to Flat 4 on the 6th Floor of that building. Another male (Mr Lai) pressed the code to unlock the door of Room C within Flat 4. Mr Lai said that he had come to look for the accused. The accused was then intercepted by the police. Investigations revealed that Room C within Flat 4 was rented by the accused. The accused admitted that he alone knew the passcode to Room C.
Police executed a search warrant in the Room. The officers found a number of items in the room and they include:
(1) Five paper boxes each containing one transparent resealable bag containing dangerous drugs and two recycle bags. The dangerous drugs in the five transparent bags were subsequently examined to contain 3.457 kilogrammes of a mixture containing 3.038 kilogrammes of heroin hydrochloride;
(2) Two electric scales, one of which was examined and contained traces of heroin hydrochloride;
(3) Some transparent resealable bags;
(4) One pair of scissors, subsequently examined to contain traces of heroin hydrochloride;
(5) Three cards; and
(6) Two mobile phones.
The accused was arrested for trafficking in dangerous drugs. Under caution, he said “the Boss” told him to take and store the five boxes of so-called “No. 4” in the Room. The video-recorded interview was conducted in the presence of the accused’s solicitor. The accused said that he rented the room for several months. He told the police only he knew the password to the Room. The five boxes of “No. 4” in which dangerous drug material for this offence were found actually belonged to him. He stored them in the Room and he would sell the drugs. He asserted he had no boss.
The accused admitted that the electric scales were used for him to weigh the dangerous drugs. He bought the plastic bags for storing the dangerous drugs.
The average retail value for heroin hydrochloride material to this case in October 2019 was $2.66 million. Enquiries reveal that the accused had rented the Room with a monthly rent of HK$6,300.
Mitigation
In mitigation, counsel for the accused told the court he is 27. He was 25 years old at the time of the offence. He has a clear record. He was born in mainland China but moved to Hong Kong when he was a year old. After completing Form 4 education, he worked as a transportation worker for a few years, earning a monthly income of about $14,000 a month.
The accused has a good family background. He has been living harmoniously with his family members. He would pay about $8,000 per month to his family.
It is submitted that the accused committed the present offence because of financial pressure from being laid off by his employer due to public order events. He wanted to earn quick money to support his family. It was submitted that the amount of money in question was $3,000. It was also submitted that he chose the wrong path under the influence of some bad friends. While I accept that $3,000 was part of the proceeds of the crime, given the scale of the operation, it defies any rational analysis that this was his sole proceeds.
In mitigation, it was submitted that he pays $8,000 to his family each month. Under the circumstances, I am unable to accept the accused only committed the present offence for a reward of $3,000. I note the value of the heroin hydrochloride found in the Room is $2.66 million. I cannot say what his income from trafficking was but I do not accept that it was $3,000.
I accept, however, his remorse. I have read a letter from him and I was moved by it. His remorse is clear and demonstrable and so it should be. He recognises the educational and training opportunities which are available in prison and he plans to take advantage of them. That is very much to his credit. I note the presence of his family in court today to support him. They are not only welcomed, that is a very positive sign, and I take it into account.
Sentencing Principles, Sentencing for Drug Trafficking
For many years, the community of Hong Kong has taken a severe view of drug trafficking - particularly in relation to drugs such as heroin. It is easy to see why. The drug has terrible consequences for the individual. It is addictive. Ridding oneself of that addiction is, to say the very least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to heroin is fraught with instances of disappointment.
However, there are serious consequences for the community. Those consequences involve, amongst other things, the deployment of medical and health facility to help people who become addicted to these drugs.
The view of the community is reflected in the maximum sentence provided by section 4 of the ordinance. That provides for convictions on indictment that the maximum sentence is life imprisonment or a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug trafficking cases is to impose deterrent sentences. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs including the drugs, the subject of the charge in this case.
The guidelines for trafficking in heroin originated in R v Lau Tak Ming [1990] 2 HKLR 370 and I give the reference. They were confirmed in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 where the Court of Appeal set down guidelines for “large quantities” of dangerous drugs such as this one and they did so as follows:
Discount for Plea of Guilty
The well-accepted principles of sentencing recognise that where an accused person pleads guilty at the earliest practicable moment, that a discount from the appropriate starting point of 33 per cent would be applicable.
Role of the Accused
It is critical to determine the role of the accused in the crime, and for that I cited HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, [2020] HKCA 974. In that case, the Court of Appeal recognised that although the analytical starting point for the sentencing guidelines for drugs such as cocaine and heroin start upon the premise of sentencing a courier or storekeeper, there is a range of culpability even if a trafficker can be characterised, as in this case, as a courier. The Court of Appeal held that an accurate characterisation of the role of the accused is critical because, in appropriate cases, it would be open to the sentencing court to sentence the accused above or below the mathematical application of the relevant guideline. The Court of Appeal rejected the sentencing approach in trafficking in dangerous drugs where the sentence was based solely on narcotic content.
Application of Sentencing Principles
On the basis of the guidelines, the arithmetic mean for the accused’s sentence would be 24 years and 11 months.
The guidelines set down in Lau Tak Ming and Abdallah are meant for couriers and storekeepers (see Herry Jane Yusuph). In my view, the accused is not a mere courier or storekeeper, but is also an actual trafficker and packager of the drugs in addition to being a courier. He used electric scales to weigh the heroin. There were traces of heroin hydrochloride found on one of the electric scales and a pair of scissors found in the flat, which were used in the drug trafficking operation.
The accused admitted under caution that he would package the heroin hydrochloride in the Room and sell it.
He was no mere courier or storeman, but an actual trafficker and one who trafficked in a very large quantity. This is a case where the sentence based on the arithmetic mean of the relevant bands of guidelines would not recognise the seriousness of the offence and the involvement of the accused. I have to allow for the fact that the sentencing curve flattens at this level of sentence and care must be taken not to lose a sense of proportion in sentencing above the arithmetic mean. In my judgment, allowing for his role and counter-balancing the remorse and the determination of the accused to better himself through education and training, I fix the starting point at 25 years and 8 months.
That starting point must be reduced by 33 per cent for the timely plea of guilty.
Disposition
In many respects, there are a number of incongruities about this case. Probably the central incongruity is that a person of 27 years of age with a clear record and a good family background comes to be trafficking in such an astonishing amount of heroin. I perfectly understand that times have been difficult in the past few years but the relationship between these facts makes no sense. Against that, you pleaded guilty to trafficking in 3 kilogrammes of dangerous drugs, which has the potential to inflict misery and suffering on so many. I am encouraged by the recognition by the accused that he has let himself and his family down and they will not see him as a free man for many years. I am encouraged by the recognition that the accused will take up educational and training opportunities accorded to him within the prison system. This taken together with the recognition of the scope of his wrongdoing and his remorse has the potential to ensure that the accused leaves prison a better person than he enters it. Sentencing for drugs of this kind and, particularly, for drugs of this quantity and nature requires of the courts, deterrent sentences. In an attempt to balance what the community demands and the mitigating factors and rounding slightly down, I order that the sentence in this case be one of 17 years.