COURT: The defendant pleaded guilty to one count of conspiring with Lai Man-chung, whom I will refer to as Lai, the defendant in HCCC 175/2021, to traffic in dangerous drugs, namely 589 grammes of a mixture containing 505 grammes of heroin. On 2 September 2020, a parcel was intercepted and examined by Customs officers. Heroin was found to have been hidden inside two of the items inside the parcel. The parcel, according to the airway bill attached to it, came from Malaysia and was to be delivered to the defendant. Customs officers conducted a controlled delivery and arrested the defendant when he accepted delivery of the parcel.
The defendant was instructed by Lai to receive the parcel in question and he was also instructed by Lai to purchase an electronic scale and ziplock bags. The defendant admitted that he knew that dangerous drugs would be inside the parcel. The defendant gave evidence as a prosecution witness in the trial of Lai, which resulted in Lai’s conviction. I accept that the defendant had given truthful and reliable evidence in the trial of Lai.
The defendant is now 28 years old and 25 years old at the time of the offence. Before his arrest, he lived with his parents in a public estate unit in Sha Tin. He received education up to Form 5 and had been suffering from developmental dyslexia since his childhood. Due to this problem, he was an underachiever at school and could not catch up with his studies. He started working when he was 19. At the time of his arrest, he was working as a delivery worker. His former employer provided this court with a mitigation letter stating that the defendant was an obedient and hardworking employee.
The defendant has some minor criminal records which is not relevant to my consideration in this case.
I have also considered the other mitigation letters submitted by the defendant. I accept that the defendant is truly remorseful for his conduct. All the letters attested to the defendant’s character as a simple-minded person who can be easily manipulated by others.
Although there is no formal medical report before me, I am prepared to accept the account of the defendant’s mother and elder brother as described in their mitigation letters that the defendant had been found to be slightly retarded since his childhood. This is consistent with this court’s observation of the defendant when he testified in HCCC 175/2021.
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I therefore follow the six-step sentencing approach as set out in Yusuph.
The first step is to identify the relevant guideline band or bracket applicable to the quantity of the drug concerned. The guidelines in relation to the trafficking of heroin is set out by the Court of Appeal in R v Lau Tak Ming [1990] 2 HKLR 370 at 387, and subsequently affirmed in Abdallah [2009] 2 HKLRD 437 at paragraph 4.
The second step is to assess the defendant’s role and culpability based upon the evidence. In the present case, the defendant have followed Lai’s instructions to accept the parcel containing the heroin for a reward of $4,000. I would therefore treat his culpability at the same level as that of an ordinary courier.
The third step of the sentencing exercise is to identify where in the relevant band the defendant comes, which yields the starting point for the sentence. Although the defendant was convicted of a single charge of conspiracy to traffic in dangerous drugs rather than the substantive offence, there is no uncertainty as to the quantity of heroin agreed to be trafficked and as particularised in the charge. In respect of this defendant, for agreeing to traffic in 505 grammes of heroin, the proper starting point is 17 years and 7 months’ imprisonment.
The fourth step requires me to consider if there are any aggravating factors which might require me to enhance the starting point. The fact that the defendant knew the package came from overseas means that an international element is involved, which is an aggravating factor. Applying the guidelines laid down in HKSAR v Chung Pin Kun, unreported, CACC 85/2014, at paragraph 9, this court would enhance the sentence by 1 year.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence, bearing in mind that the personal circumstances for this offence generally count for little. I have borne in mind the observations of the Court of Appeal in both 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.
The defendant provided truthful and reliable evidence in the trial of Lai in HCCC 175/2021 which resulted in Lai’s conviction. As stated in Z v HKSAR [2007] 10 HKCFAR 183 at paragraph 23, where the defendant had not only given information but had proceeded to give truthful and material evidence, the usual discount to be given from the starting point is 50 per cent, which includes the one-third reduction for pleading guilty. I find that his assistance to the prosecution case and his testimony in the trial of Lai, together with his plea of guilty, warrants a discount of 50 per cent from the starting point.
The sixth and final step is to stand back and look at the overall sentence in order to ensure that it is a fair, just, and balanced sentence in all the circumstances of the offence and I stress also the offender. In the words of Deputy High Court Judge McWalters in HKSAR v Suen Yuk Hang [2021] HKCFI 2940, the judge should ensure that the sentence is not a crushing one but one that is fair, balanced, timely, and just.
In applying this sixth step, this court has been assisted by the way in which other sentencing courts have applied this sixth and final step. In particular, see 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, as well as some others. The mitigation letter submitted by the defendant demonstrate that he is a slightly retarded, simple person who can be easily manipulated by others. He has frankly admitted the offence from the outset when he was first arrested and is truly remorseful. In his own mitigation letter to this court, the defendant promise to make good use of his time in prison and to take steps to improve his ability to earn a living when he is released from prison.
Tailoring the sentence to the circumstances of this offender without undermining the sentencing principles relevant to trafficking offences, the defendant’s sentence will be reduced to 8 years and 6 months’ imprisonment. In my view, such a sentence is sufficiently punitive and sends a clear message of denunciation and deterrence. At the same time, I hope that the reduced sentence will encourage the defendant to pursue a path of rehabilitation and to continue to improve himself whilst he is serving out his prison term.
I sentence you to a term of 8 years and 6 months’ imprisonment.