COURT: The defendant has been charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.
It is alleged that he, on 24 November 2021, outside Ground Floor, Un On Building, Un Chau Street, Sham Shui Po, Kowloon, unlawfully trafficked in a dangerous drug, namely 495 grammes of a crystalline solid containing 490 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.
The defendant pleaded guilty to the charge before the magistrate at the committal proceedings and was committed to the Court of First Instance for sentence.
Hence, he is brought before me today for sentence to be imposed on him. He confirms his guilty plea, as well as his admission to the Summary of Facts read out to him at the Magistrates’ Court.
Facts of the Case
The facts giving rise to this case are as follows:
On 24 November 2021, police officers conducted an anti-crime patrol in Sham Shui Po, Kowloon. At around 6.41 pm, they spotted the defendant acting furtively outside No. 48 Un Chau Street, Sham Shui Po, Kowloon.
The officers stopped the defendant for inquiry. Upon search of a plastic bag carried by the defendant, two transparent bags, each containing suspected dangerous drugs, were found. The defendant was therefore arrested for trafficking in a dangerous drug.
The Government Laboratory later conducted an examination on the drugs and confirmed that the total narcotic content in the 495 grammes of a crystalline solid is said to contain 490 grammes of ‘Ice’. The total street value of the drugs at the time of the offence was around HK$340,000.
In a video-recorded interview, the defendant admitted under caution that he knew the transparent bags contained dangerous drugs and he bought them from a person named ‘Ah B’ at the price of HK$200,000 and planned to resell the drugs to his friends.
In that connection, Mr Ho, appearing for the defendant today, submitted in his mitigation that the defendant actually received the drugs from his friend called ‘Ah Kei’ who told the defendant that he had purchased the drugs from ‘Ah B’ for resale. The defendant agreed to keep the drugs for ‘Ah Kei’ for a reward of HK$10,000. And in that connection, Mr Ho invited the court to accept that the defendant was merely a storekeeper for the drugs.
The Defendant’s Background
The defendant is now 71 years old. He was divorced since 2021 and has a son who is aged 26. The defendant received education up to Primary 6. At the time of the arrest, he was unemployed and it was said that it was difficult, if not impossible, for him to find a job due to his age.
There is no dispute, and the court can see readily from the record, that the defendant has a long string of criminal convictions: on 33 occasions totalling 51 convictions, including nine offences of possession of dangerous drugs and seven offences of trafficking in dangerous drugs. He was convicted of possession of dangerous drugs on a number of occasions from 1976 to 2002 (including those convictions in 1976, 1983, 1985, 1987, 1988, 1995, 2001 and 2002), for which he was sentenced to various terms of imprisonment.
He has also committed the offence of trafficking in dangerous drugs on five occasions, including those in 1988, 2005, 2010 and 2018. In 1988, he was convicted of two offences of trafficking in dangerous drugs, or as they are recorded on the criminal record, possession of dangerous drugs for the purpose of unlawful trafficking. For those offences, he was sentenced to 18 months and 4 years and 3 months. And later on in 2005 and 2010, he repeated the same offence of trafficking and was sentenced to terms of imprisonment, 3 years and 10 months’ imprisonment and 5 years’ imprisonment respectively. His last conviction record was in August 2018, involving two counts of trafficking in dangerous drugs and one count of possession of equipment fit and intended for the consumption of dangerous drugs. For that set of offences, he was sentenced to imprisonment terms of some length that totalled 56 months. He was last released from Tai Lam Correctional Institution on 12 January 2021. And in the same year, later in November 2021, he committed the present offence.
The court set out the criminal history of the defendant at some length because that is obviously a matter that should be taken into account in sentencing in due course as I will explain later on.
Mitigation
During mitigation, Mr Ho invited me to consider the defendant’s plea of guilty in the first opportunity and that he committed the present offence as he needed to earn quick money to fund his self-consumption of dangerous drugs.
It was also accepted by Mr Ho on behalf of the defendant that the whole amount of the dangerous drugs seized was indeed for unlawful trafficking as opposed to for self-consumption.
Sentencing Principles and Tariffs
The courts of Hong Kong have consistently adopted a serious approach in handling cases of drug trafficking. This is reflected in the nature of the sentences and the levels of those sentences traditionally imposed by the courts. The maximum sentence for trafficking in a dangerous drug is life imprisonment. To this end, the courts have provided the sentencing guidelines in the form of tariffs for various types of dangerous drugs, including ‘Ice’, the subject drug in this case.
The approach in relation to sentencing drug traffickers was explained in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, in which the Court of Appeal laid down a six‑step approach to the sentencing of offenders convicted of trafficking in a dangerous drug.
As the first step, the Court assesses the gravity of the offence by looking at the type and quantity of the drug concerned. There is in this case one type of dangerous drug, namely ‘Ice’. The sentencing tariff applicable to trafficking in 300 grammes to 600 grammes of ‘Ice’ is set out in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. According to that tariff, the starting point for sentence after trial is one of between 15 years to 20 years’ imprisonment for that quantity of ‘Ice’.
The second step is to assess the role and culpability of the defendant. Having considered Mr Ho’s mitigation, in particular the explanation of the background of the offence as well as the background of the defendant, I accept that the defendant’s role in the present case was merely that of a storekeeper, who was instructed to keep the drugs at his home and to hand it over to other persons as and when required.
The third step is to identify where in the relevant band of the guidelines the defendant comes. As the sentencing guidelines for trafficking in dangerous drugs are based upon the role of a defendant as a courier or storekeeper, I accept that the relevant sentencing band of 15 to 20 years’ imprisonment is applicable to this case and requires no enhancement in that regard, given that I accept the defendant’s role is one of storekeeper only. In accordance with the sentencing tariff and on a strictly mathematical calculation based on the weight of the drugs involved, the starting point for the present case should be one of 18 years and 2 months’ imprisonment.
The fourth step is to consider whether there is any aggravating factor which warrants an enhancement of the starting point for sentence. It is well-established by the authorities, including R v Lau Tak-ming and others [1990] 2 HKLR 370; HKSAR v Abdallah [2009] 2 HKLRD 437 and HKSAR v Chau Hon Kwong [2011] 1 HKLRD 630, that a previous conviction for trafficking in dangerous drugs will justify an enhancement of the starting point for sentence, in particular for repeat offenders.
Taking into account the defendant’s previous criminal history, in particular those conviction records relating to dangerous drugs as I have mentioned earlier on, I take the view that it is appropriate for me to enhance the sentence in this case on account of the aggravating feature concerning the defendant that he is a repeat offender. I should accordingly enhance the sentence by 3 months, bringing the overall starting point to one of 18 years and 5 months’ imprisonment.
Fifthly, I am required to have due consideration of all mitigating factors. As the defendant made a timely and early plea of guilty, I am prepared to give the full one‑third discount to him in accordance with the sentencing principle in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. This will reduce the overall starting point to one of 12 years and 3 months’ imprisonment.
The sixth, and final, step of the sentencing process is to stand back and look at the overall sentence passed in order to ensure it is fair and just. Having considered the circumstances of the offence, the defendant’s background, in particular the fact that he is a repeat offender, as well as the mitigating factors submitted by Mr Ho on his behalf, I take the view that the ultimate sentence of 12 years and 3 months’ imprisonment is appropriate and is not out of proportion to the defendant’s overall criminality.
Hence, the sentence that I would impose on the defendant is one of 12 years and 3 months’ imprisonment.
Defendant, you are sentenced to 12 years and 3 months’ imprisonment for the offence.