COURT: The defendant was charged with one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.
In gist, it is alleged that he, on 16 July 2021, at Reclamation Street near Shantung Street, Mongkok, Kowloon, unlawfully trafficked in dangerous drugs, namely 14.1 grammes of a mixture containing 11.6 grammes of heroin hydrochloride and 19.2 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.
The defendant pleaded guilty to the charge and admitted a set of facts before the magistrate and he is brought before me today for sentence.
Facts of the Case
The facts giving rise to the case are as follows.
On the date in question, 16 July 2021, police officers conducted an anti-crime patrol in Mongkok. At around 1 am, they spotted the defendant acting in a suspicious manner at Reclamation Street, near Shantung Street.
The officers intercepted and searched the defendant, upon which three transparent plastic bags containing suspected dangerous drugs were found hidden underneath the defendant’s underpants. Over HK$100,000 cash as well as RMB500 were found on the defendant. On him was also found three mobile phones. He was arrested for trafficking in dangerous drugs.
On subsequent examination, the drugs found on the defendant was confirmed to be those as stated in the charge, namely, 11.6 grammes of heroin hydrochloride and 19.2 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’. The total street value of the drugs at the time of the offence was around HK$30,000.
In a subsequent video-recorded interview, the defendant admitted under caution that he possessed the drugs seized for his own consumption. He said he had purchased them from a person named ‘Ah Yan’ at the price of HK$10,000 and HK$6,000 respectively for the two types of drugs. The defendant further claimed that he had the cash on him because he was unable to set up any bank account owing to his bankruptcy status. These were what he alleged in the video-recorded interview.
In that connection, Ms Chan appearing for the defendant today, clarified that the defendant does not seek to rely on self-consumption as a ground of mitigation. It is accepted on his behalf that the drugs were all possessed for the purpose of trafficking. It is said that the defendant was a mere courier of those drugs.
The Defendant’s Background
The defendant is now 49 years old, single. He is locally born and bred. He has a younger sister who is married. His mother passed away in late 2021, during which time the defendant was remanded in custody for this case.
He used to be a construction worker, earning an average of HK$15,000 per month.
He was admittedly a drug abuser.
The defendant has a string of criminal convictions spanning from 1990 to 2019. Those convictions were for a total of 31 offences, 13 of which are drug related, including 6 offences of possession of dangerous drugs and 4 offences of trafficking in dangerous drugs.
He was last released from prison on 2 January 2021. That was 6.5 months prior to his commission of the present offence.
Mitigation
In mitigation, it was submitted on his behalf that the defendant was a mere courier. It was said that there was no evidence that at the time of the offence there was any actual dissemination of the drugs by the defendant to others, especially given that the seized drugs were all found hidden underneath the defendant’s underpants.
As I have just mentioned, the defendant accepts and admits that the entire amount of the drugs seized were indeed for the purpose of his unlawful trafficking.
As to the reasons for his commission of the present offence, the defendant claims that the construction industry was hit by the Covid pandemic and, upon his release from prison in January 2021, he found himself in a difficult position that he has unable to secure gainful employment in construction sites. He said that he was driven to commit the present offence and act as a drug courier.
Sentencing Principles and Tariffs
The courts of Hong Kong have consistently adopted a serious view in handling cases of drug trafficking, in particular, for hard drugs such as heroin and ‘Ice’, the subject drugs in the present case. To reflect the serious views of such activities, the courts have devised tariffs that are in particular applicable to trafficking in those hard drugs.
The tariffs that are applicable to trafficking in heroin and ‘Ice’ are respectively derived from the cases of R v Lau Tak-ming & Others [1990] 2 HKLR 370 and HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.
According to those sentencing tariffs, a quantity between 10 and 50 grammes of heroin would attract a starting point for sentence of between 5 and 8 years’ imprisonment; whereas a quantity between 10 and 70 grammes of ‘Ice’ would attract a starting point of between 7 and 11 years’ imprisonment.
Sentencing Principles Where There Is More Than One Drug Involved
A further dimension to the sentencing exercise in this case is to consider the fact that a collection of different dangerous drugs is involved. The appropriate approach is to compute the overall starting point for trafficking in what is known as “cocktail drugs” by way of a ‘combined approach’.
The essence of that approach is that if the drugs are approximately similar in nature, then it would be fair and appropriate to consider them together, bearing in mind that there might necessarily have to be adjustment even if the combined approach is used to avoid absurdity.
Under the ‘combined approach’, the first step requires the determination of relevant starting point for each type of drugs. The sentencing bands have already been identified above. The quantity of heroin in this case in terms of the narcotic content is 11.6 grammes. On a strict arithmetic calculation, the starting point for such quantity is one of 5 years and 2 months. For the quantity of ‘Ice’ involved, namely 19.2 grammes, the starting point is 7 years and 7 months.
As ‘Ice’ is the more serious drug in terms of potency as compared to heroin, I come to the view that the justice of this case is best served by adopting the ‘combined approach’ and adjusting upwards the starting point for ‘Ice’ of 7 years and 7 months to one of 8 years’ imprisonment, taking into account the quantity of heroin involved. And, in accordance with the principles enunciated in the case of HKSAR v Chan Yuk Leong [2014] HKLRD (Yrbk) 325, I have cross-checked this starting point against the result of the absurdity test, the conversion test, and the ratio test.
In accordance with the absurdity test, the starting point would be one of 8 years and 5 months.
In accordance with the conversion test, if one is to convert all the drugs into ‘Ice’, the starting point would be 8 years. If one were to convert all the drugs into heroin, the starting point would be one of 8 years and 2 months. Plus, under the conversion test, the lower of the starting points would be to convert all drugs into ‘Ice’, which would produce 8 years as the starting point.
In accordance with the ratio test, the starting point produced would be one of 7 years and 9 months.
Starting Point Adopted for This Case
The absurdity test, conversion test, and ratio test are just a means to the ultimate objective of providing a cross-check as to where the appropriate sentence lies. The ultimate result is still to meet the object of the sentencing policy of the courts of Hong Kong in trafficking in dangerous drug cases, which is deterrence, combined with a recognition that a separate treatment of each drug together with consecutive sentences might not produce a just result, even against the imperative of deterrence.
In the circumstances of the present case, having cross-checked the starting point adopted against the result of the three tests that I have just mentioned, I find that a starting point of 8 years before enhancement or before discount would produce a just outcome.
After arriving at the appropriate starting point, as the Court of Appeal stated in the case of Tam Yi Chun, and I quote:
“These are starting points after trial, in other words before enhancement for aggravating features, if any, and before reduction for such mitigating factors, most commonly in this category of offence, a plea of guilty. It is still for the sentencing judge to take into account, in application of the tariffs, the degree of involvement of the offender, the previous history if any of narcotic offences...”
As to the defendant’s involvement, his role and culpability, I have considered Ms Chan’s submissions on his behalf as well as the facts of the case. In the absence of any evidence pointing to any actual dissemination of the drugs by the defendant, I accept Ms Chan’s submissions that the defendant’s role was merely a courier. In that regard, I do not consider it necessary to enhance the sentence on account of the defendant’s role.
However, I have to consider whether there is any enhancement needed for the fact that the defendant is demonstrably a repeat offender. Taking into account the defendant’s long history of involvement in narcotic offences, in particular the fact that he was last released from prison for trafficking in dangerous drugs that he had committed in 2019, and he was last released just 6.5 months prior to the present offence, I take the view that the court should consider enhancing the sentence to reflect that aggravating feature.
Having considered the whole circumstances, I opine that 3 months’ enhancement is warranted for the aggravating feature that the defendant is a repeat offender. This would bring the overall starting point, before discount for plea of guilty to one of 99 months, that is, 8 years and 3 months.
The defendant pleaded guilty at the earliest practical opportunity and is therefore entitled to a full one-third discount for that. That would bring the overall starting point, after deduction, to one of 5 years and 6 months, that is, 66 months.
Hence, the final sentence that I would impose on you would be 5 years and 6 months.