On 28 December 2018, the defendant was intercepted by police officers in the lift lobby of 35th Floor, Hong Ching House, Kai Ching Estate. The defendant was travelling with a Ms Chang Ching-lam, whom I refer to as “Chang” in these reasons, at the time.
The police officers searched the defendant and Chang. Inside a grey paper bag that Chang was carrying, the police found a sweatshirt wrapping a transparent plastic bag wrapping another black plastic bag. Inside those bags was a block of solid which contained 922 grammes of cocaine.
The police then searched Flat 3524 of Hong Ching House, which I will refer to simply as “the flat”, where the defendant had been living. Inside the flat, the police found a total of 18.83 grammes of cocaine and 34.4 grammes of herbal cannabis. 6.93 grammes of the cocaine were found in 50 plastic bags while 11.9 grammes of it were found in another larger plastic bag.
In the statements to the police, the defendant explained how the drugs came about.
First, in relation to the 922 grammes of cocaine in Count 1, the defendant said that he had received a phone call from a man in the evening of 28 December 2018, asking if he would like to make some quick money by picking up and delivering some drugs in Yuen Long. He agreed and he picked up the 922 grammes of cocaine in a toilet in a gas station in Yuen Long.
As to Count 2, the defendant explained that his friend named “Ah Mui” had offered him cash to pack cocaine into 50 small bags. He had crushed and packed the cocaine from the large plastic bag into the 50 smaller bags.
As to Count 3, the defendant explained that he received the cannabis from a drunk South East Asian man in Mongkok in 2016. He had kept it in his flat with no intention of dealing in it.
Trafficking
I start with the sentence for Counts 1 and 2.
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2020] 1 HKLRD 290. I therefore follow the six-step sentencing approach set out in Yusuph.
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. In respect of Count 1, the relevant decision is HKSAR v Abdallah [2009] 2 HKLRD 437. The case lays down a sentencing band of 20 to 23 years’ imprisonment for quantities of 600 grammes to 1,200 grammes of cocaine.
In respect of Count 2, the relevant decision is R v Lau Tak Ming [1990] 2 HKLR 370. The case lays down a sentencing band of 5 to 8 years’ imprisonment for quantities of 10 to 50 grammes of cocaine.
In HKSAR v Wan Lau Mei [2014] 4 HKC 75, the Court of Appeal laid down guidance on how to sentence for multiple trafficking offences where different quantities of dangerous drugs are found in the accused’s possession on the same day but at different locations. The Court of Appeal said at paragraph 29:
“The judge should regard the two offences as representing one occasion of possession of the total amount of drugs and impose sentences on both offences for that total, making the sentences concurrent with one another. Separate sentences still have to be imposed and so the judge imposes the same sentence for the first offence, here the streetside possession of the applicant of 2 grammes of cocaine, as he does for the second offence. He determines the sentence by adding the quantity of drug of the 1st charge to the quantity of drugs the subject of the 2nd charge, here the drugs found in the applicant’s residence. An appropriate sentence for this total quantity of drugs is then imposed for both offences with the sentence for the second offence made concurrent with the sentence for the first offence.”
As the Court of Appeal made clear, it is still necessary for the sentencing court to arrive at the sentence for each count with which a defendant is charged. The proper way is to take into account the defendant’s overall culpability by reference to the total quantity of drugs and to order that the sentences for each count to be served concurrently if appropriate. This is an exercise that I would undertake in the sixth steps of the Yusuph exercise. Accordingly, I would apply the first five steps as set out in Yusuph for Counts 1 and 2 separately before determining the overall appropriate sentence instead of six.
The second step in the Yusuph exercise is to assess the defendant’s role and culpability based on the evidence. In relation to both Counts 1 and 2, it appears that the defendant was a courier, picking up the drugs for delivery or responsible for packing drugs so that it can be sold. I assess his culpability as any other courier.
The third step of the sentencing exercise is to identify where in the relevant band the defendant comes. This would yield a starting point for the sentence. In respect of this defendant, trafficking in 922 grammes of cocaine in Count 1, a mathematically calculated place within the sentencing band, as already mentioned, would be 21 years and 7 months’ imprisonment. Trafficking in 18.8 grammes of cocaine in Count 2, a mathematically calculated place within the sentencing band, as already mentioned, would be 5 years and 7 months’ imprisonment.
Taking into account the defendant’s role and culpability and the weight of the cocaine in which he trafficked, I cannot see any basis 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. I am not aware of any such aggravating factors in the present case.
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. I have borne in mind the observations of the Court of Appeal in Abdallah at paragraph 32 and Yusuph at paragraph 44 where the Court of Appeal stressed the seriousness of drug trafficking and the problems that it brings to families and communities.
Accordingly, the defendant’s personal circumstances are rarely a mitigating factor. In light of the aforesaid principles, the defendant’s personal circumstances do not constitute mitigating factors for the purpose of the fifth step. The main mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount off the starting point in relation to both Counts 1 and 2, which brings the notional sentence to 14 years 4 months’ imprisonment for Count 1, and 3 years 8 months’ imprisonment for Count 2 after rounding down.
The sixth and final step is to stand back, observe the overall sentence to ensure that it is fair, balanced and just in all the circumstances of the offence and the offender. In HKSAR v Suen Yuk Hang, HCCC 143/2021, Deputy High Court Judge McWalters described the sixth step as follows:
“The judicial officer should stand back and objectively examine his proposed sentence to ensure that it is not a crushing sentence but one that is fair, balanced, timely and just.”
In HKSAR v Tang Wing Han [2021] HKCFI 2528, Deputy High Court Judge McWalters further emphasised the importance of the sixth step in cases where the defendant is faced with multiple charges:
“This is particularly relevant to cases involving multiple offences where the principle of totality comes into play to ensure that the final sentence is not a crushing sentence, but, as I have said, one that is fair, balanced and ultimately just. I shall address this step when I finalise my sentence for the more serious charge of manufacturing a dangerous drug.”
There are two exercises that the court must conduct. The first is to assess whether and the extent to which the sentence for each count should be served concurrently or consecutively. The second is to assess whether the final sentence is fair, balanced and just. As Deputy High Court Judge McWalters said in Tang Wing Han:
“This brings me to the final step in the six steps laid down in Herry Jane Yusuph and this step requires me to apply the totality principle to the final sentence. In my view, the issue of totality is relevant not just to determining whether any part of the manufacturing sentence should be ordered to be served consecutively to the trafficking sentence but if it should not, to also whether the final sentence of 16 years and 2 months’ imprisonment itself needs further adjustment to ensure it is fair, balanced and ultimately just.”
I start with the calculation of the overall notional sentence in respect of the total amount of cocaine in both Counts 1 and 2. In this case, I bear in mind that applying the Abdallah guidelines, the starting point for someone who has trafficked in the overall quantity of 940.83 grammes of cocaine would be a sentence of 21 years and 8 months’ imprisonment. Applying the one-third discount leads to a notional sentence of 14 years 5 months’ imprisonment for the combined quantity in both Counts 1 and 2 after rounding down.
In addition to the cases cited above, a number of sentencing cases relating to drug-trafficking offences since the Yusuph decision have shed light on how the sixth step is substantively applied to different circumstances. These cases include HKSAR v Kwan Wai Fan [2021] HKCFI 2036, HKSAR v Chan Ho Kwai [2021] HKCFI 2938 and HKSAR v Cheng Man Kit [2021] HKCFI 3032 plus others. This court has been assisted by the way in which those sentencing courts have applied the sixth and final step.
The case of Tang Wing Han is instructive. In that case, the defendant pleaded guilty to trafficking and manufacturing dangerous drugs. Having applied the first five steps as set out in Yusuph, the defendant was faced with a total notional sentence of 16 years and 2 months’ imprisonment. Deputy High Court Judge McWalters, however, considered that the sentence of 16 years and 2 months would be crushing on the defendant in that case, and his Lordship ultimately reduced that sentence to one of 15 years’ imprisonment. Amongst other factors, Deputy High Court Judge McWalters considered the following:
“The defendant is 28 years of age. A sentence as long as 16 years and 2 months will mean that even if he receives a further discount from the Commissioner for Correctional Services for good behaviour while serving his sentence, he will still not be discharged from custody until he is in his late 30s. He is keen to return to his mother to help look after her. She will be a much older person and it is only right that he should be given the opportunity to spend as much of her remaining days as possible with her.”
The defendant in this case is currently 26 years old. The defendant’s mother injured her spine and went through numerous medical treatments incurring HK$150,000 to HK$200,000 in medical fees. The defendant trafficked in dangerous drugs, hoping to make some quick money to relieve his family’s financial pressure.
For the total quantity of drugs in respect of Counts 1 and 2, the defendant is facing a notional sentence of 14 years and 5 months’ imprisonment. Even assuming that the defendant receives a full remission of the sentence for good behaviour, he should be in his 30s when he leaves prison. He will no doubt face many challenges reintegrating into society. He will have lost almost a whole decade, being unable to spend time with his mother.
As stated by Deputy High Court Judge McWalters, the question for this court is whether the notional sentence will be crushing on this defendant. I am of the view that it will be. So tailoring the sentence to the circumstances of this offender without undermining the sentencing principles relevant to trafficking offences, a reduction in the overall sentence to 13 years’ imprisonment will be appropriate in the present case. I will achieve that by reducing the sentence on Count 1 to 13 years’ imprisonment, with Count 2 to be served concurrently with Count 1.
Such a sentence still contains sufficient elements of denunciation and general deterrence and is still sufficiently punitive for the offences of which the defendant has been convicted. I also hope that such a reduced sentence will encourage the defendant to pursue a path of rehabilitation, will still allow him to spend time with his mother and reintegrate into Hong Kong society after his sentence.
Possession of Cannabis
As to the possession of cannabis in Count 3, the quantity involved in this case is relatively small and does not add anything to the defendant’s overall culpability. I consider the appropriate sentence for Count 3 to be 30 days’ imprisonment. Applying the one-third discount for the defendant’s guilty plea, the appropriate sentence would be 20 days’ imprisonment, also to be served concurrently with Count 1.
Conclusion
The defendant’s overall sentence is this: For Count 1, I impose a sentence of 13 years’ imprisonment; for Count 2, I impose a sentence of 3 years 8 months’ imprisonment, to be served concurrently with Count 1; for Count 3, I impose a sentence of 20 days’ imprisonment, also to be served concurrently with Count 1.
Defendant, please stand up. I sentence you to a term of 13 years’ imprisonment.