The defendant, Hui On-lung, pleaded guilty to two counts of trafficking in a dangerous drug and admitted the facts pertaining to the charges in the court below. Today, he confirmed his guilty plea and admission of the Summary of Facts dated 12 January 2023 before me. I convict him on his own plea and admission.
The defendant committed the two offences on 5 March 2021. Charge 1 concerns 998 grammes of a crystalline solid containing 998 grammes of methamphetamine hydrochloride or what is more commonly known as ‘Ice’, where Charge 2 concerns 1,991 grammes of a crystalline solid containing 1,991 grammes of methamphetamine hydrochloride. The purity is therefore 100%.
The Facts
The Summary of Facts dated 12 January 2023 reads as follows.
At about 6.28 pm on 5 March 2021, the police were conducting an anti-drug operation. Defendant was spotted coming out from Room 2920, 29th Floor, Hin Ming Court, 6 Chiu Shun Road, Tseung Kwan O, New Territories, Hong Kong (“the Flat”), with a carton box. He was intercepted.
Upon search, three smaller carton boxes were found inside the carton box the defendant was carrying. Inside two out of the three smaller carton boxes, four vacuumed plastic packets containing a total of 998 grammes of a crystalline solid of 998 grammes of methamphetamine hydrochloride were found (Charge 1). Defendant was immediately arrested and cautioned. He remained silent.
At about 6:28 pm on the same day, the police broke the door of the Flat and entered it with a search warrant. A search of the premises of the Flat was conducted. Upon search, a total of eight vacuumed plastic packets containing a total of 1,991 grammes of a crystalline solid of 1,991 grammes of methamphetamine hydrochloride, an electronic scale and resealable plastic bags were found inside a plastic bag on the floor of the only bedroom in the Flat (Charge 2).
Two more electronic scales and a sealing machine were also seized in the bedroom of the Flat.
In the open kitchen area, police found the rental agreement of the Flat which showed that the defendant was the tenant. Defendant was cautioned again and he remained silent.
The landlord of the Flat confirmed that the Flat was let to the defendant from 1 December 2020 to 30 November 2022 for a monthly rental of $10,500.
The street value of the drugs seized in this case was HK$1,691,774.
Antecedent
According to the antecedent statement of the defendant, the defendant was born on 4 November 1994 in Hong Kong. He is now 28. In the past, he has two criminal records. In 2015, the defendant was first convicted of illegal gambling for which he was fined. And then in 2017, he was convicted of a count of possession of dangerous drugs and he was put on probation for 15 months. Defendant is married and have a young daughter. They live together in a public housing estate in Tseung Kwan O.
Mitigation
Mr Kevin Chan, counsel for the defendant, had informed the court that the daughter is now 4 years old. Defendant had received education only up to Form 1. He previously worked as a kitchen assistant on a casual basis. His father is now aged around 63 and have worked as a delivery worker. His mother, aged around 55, was a part-time worker. Mr Chan said the defendant is now very remorseful and he pleaded guilty at the committal stage and therefore he would urge the court to give him the full one-third discount.
According to the cases of Tam Yi Chun and Abdallah, Mr Chan properly referred the court to the sentencing guideline there and said that the total quantity of ‘Ice’ in this case, i.e. 2,989 grammes, would fall within the range of 23 to 26 years’ imprisonment.
Finally, Mr Chan emphasised the fact that the defendant is still a relatively young man and with a young family, and urged the court to adopt a lower starting point if possible.
Consideration
In sentencing the defendant, I have taken into consideration the nature and the quantity of the drugs, the tariff as set down in Tam Yi Chun and Abdallah, and also the sentencing consideration as set out in the case of Herry Jane Yusuph, the facts of the case, all the matters urged on the defendant’s behalf by Mr Chan.
The offence of trafficking in a dangerous drug is of course a very serious offence. The maximum sentence is a fine of HK$5 million and life imprisonment. Anyone convicted of the charge will be expected to be dealt with severely by the courts. The courts will never accept any economic reasons for committing crimes, personal or family circumstances plays normally no part in mitigation in serious offences such as the present.
The strongest mitigating factor in this case is the timely plea of the defendant for which he should be given the full one-third reduction in sentence. There are two charges in this case. In sentencing the defendant for these two offences which were closely connected in terms of time and location, I shall consider the overall quantity of ‘Ice’ in respect of both charges.
The Court of Appeal had already, in Wan Lau Mei, CACC 389/2013, (unreported, 27 March 2014) laid down the proper approach in sentencing two counts of trafficking offences where different quantities of dangerous drugs were found in the accused’s possession on the same day but at different locations. This situation most commonly occurs when drugs are found on the accused person on a roadside stop and searched, and then the accused is taken back to his residence or from premises he had just left and further drugs are found. The drugs in the premises are often the source of the drugs found on the accused persons.
The Court of Appeal said the following and I quote:
“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.
Such an approach more truly reflects the accused person’s culpability as the reality of the situation is that on the day of the charges the accused was in overall possession of the drugs found at two locations. It is also an approach which ensures that the accused’s final sentence is not artificially inflated by separating out the drugs of the two charges as though the accused has been guilty of two quite separate offences and then imposing consecutive sentences.”
Given the overall quantity of ‘Ice’ involved in both charges, i.e. 998 + 1,991 and that is 2,989 grammes of ‘Ice’, the defendant’s case fall within the band of 1,200 grammes and 4,000 grammes and for which according to the case of Abdallah, the sentence is from 23 years to 26 years’ imprisonment.
The facts as admitted show that the role of the defendant was obviously more than of a courier. Apart from delivering the drugs, he was also responsible for renting the Flat inside which the dangerous drugs were packed.
Given the role of the defendant, in my judgment, an initial starting point after trial should be 24 years 11 months’ imprisonment, with a further enhancement of 7 months to reflect his role in actual trafficking in the dangerous drugs in the two charges, bringing therefore the notional starting point to 25 years and 6 months’ imprisonment.
As said, the defendant is entitled to the full one-third reduction for his timely plea and that would bring the sentence down to 17 years’ imprisonment.
The other matters urged on the defendant’s behalf by Mr Chan, whether considered separately or collectively, do not count as a mitigating factor that can further reduce the sentence.
Finally, I stand back and take a look at the overall sentence in these two charges. I took into account that this is indeed the first time that the defendant was convicted of trafficking in dangerous drugs and also the length of the sentence.
Taking this sentence of this few charges into consideration and without compromising the principle relevant to the trafficking offences and having regard to the authorities cited, in view of the lengthy sentence, I shall exercise my final discretion and the defendant’s sentence will be finally reduced to 16 years and 8 months’ imprisonment.
In my view, such a sentence is sufficiently punitive and send a clear message of denunciation and deterrence.