COURT: The defendant pleaded guilty in the Eastern Magistrates’ Courts on 14 August 2023 to two charges of trafficking in a dangerous drug, and he was committed to this court for sentence. He confirms his plea and his agreement to the Summary of Facts before me today.
(1) The offence, the subject of the 1st count, occurred when 13.57 grammes of a crystalline solid containing 13.57 grammes of methamphetamine hydrochloride were found in a plastic bag inside a box that the defendant had discarded when the police gave chase to him.
(2) The offence, the subject of the 2nd count, related to drugs were found in a hotel room in which the defendant was staying. These were quantities of three different types of drugs, namely, 17.76 grammes of a crystalline solid containing 17.76 grammes of methamphetamine hydrochloride; 3.78 grammes of a mixture containing 2.85 grammes of heroin hydrochloride; and 54 tablets and 0.03 grammes of a powder containing 0.6 grammes of midazolam.
The Facts
The facts giving rise to the two charges as admitted by the defendant when he entered his plea of guilty were as follows:
At around 2357 hours on 25 July 2020, the uniformed officers through CCTV of Prudential Hotel at Yau Ma Tei (“the Hotel”) saw the defendant went out from Room 622 of the Hotel (“the Room”) then loitered at the corridor outside the Room. He suddenly returned to the Room and later went into a lift and left. Given his suspicious actions, officers at the entrance of the Hotel were alerted to stop the defendant for inquiry.
At 0001 hours on 26 July, the defendant was seen at the ground floor entrance of the Hotel with another male. He then walked back into the Hotel. The defendant saw the uniformed officers and he immediately started running. When the officer gave chase to him, the defendant tried to leave via an exit on the 1st floor leading to a shopping centre but failed. Police loudly shouted “Police! Don’t run!”. When he went to the 2nd floor lobby, he was grabbed by an officer. He tried to go down to the 1st floor again using the escalator, but was subdued. The police saw him discarding something using his hand. The defendant was eventually arrested and cautioned for trafficking in dangerous drugs, which he remained silent. In the discarded bag, the police found:
1. a box containing a plastic bag containing 13.3 grammes of a crystalline solid containing 13.3 grammes of methamphetamine hydrochloride (commonly known as ‘Ice’); and
2. a plastic bag containing 0.27 grammes of a crystalline solid containing 0.27 grammes of ‘Ice’.
The total of 13.57 grammes of ‘Ice’ formed the subject matter of Charge 1.
A key card to the Room was found in the defendant’s shoulder bag. He was then escorted to the Room for investigation at about 0020 hours on 26 July 2020. On the 6th floor corridor of the Hotel, the defendant suddenly put up a struggle and knelt down, and shouted “there are police, leave quickly!”
The defendant was kept under control while the police gained entry to the Room using the key card found on the defendant. There was no one inside the Room. The search produced the following items:
(1) a bottle with two openings, one of which was connected to a glass tube with a bulb shape at the end, containing 26 millilitres of a liquid containing traces of ‘Ice’;
(2) a plastic bottle with two openings, one was connected to a glass tube with a bulb shape at the end, containing 7 millilitres of a liquid containing traces of ‘Ice’;
(3) one plastic bag containing one plastic bag with 18.1 grammes of a solid, which did not contain any substance controlled under the Dangerous Drug Ordinance;
(4) one plastic bag containing one plastic bag containing 28.9 grammes of a powder, which did not contain any substance controlled under the Dangerous Drugs Ordinance;
(5) one transparent box containing a folding knife and an iron clip;
(6) three lighters;
(7) a box containing three transparent glass tubes and a pair of pliers;
(8) one plastic box containing one syringe (with a hypodermic needle and a needle cap attached) containing 0.17 grammes of a mixture containing heroin hydrochloride;
(9) two electronic weighing scales;
(10) a plastic box containing a pile of empty transparent resealable bags;
(11) a paper bag containing some plastic sheets in white colour.
The safe inside the Room was locked. The defendant refused to assist. A Hotel staff then opened the safe. The police found the following items in the locked safe:
(1) a paper box containing five foil packs containing a total of 50 tablets containing 0.55 grammes of midazolam;
(2) a plastic bag containing six packets (consisting of plastic wrappings) containing 3.61 grammes of a mixture containing 2.85 grammes of heroin hydrochloride;
(3) one packet containing 0.03 grammes of a powder containing midazolam;
(4) one packet containing 0.18 grammes of a powder containing Phenacetin, listed in Part I poison;
(5) one plastic box containing 8.17 grammes of a crystalline solid containing 8.17 grammes of ‘Ice’;
(6) one foil pack containing four tablets containing 0.05 grammes of midazolam;
(7) one plastic box containing 6.49 grammes of a crystalline solid containing 6.49 grammes of ‘Ice’; and
(8) One plastic bag containing 3.10 grammes of a crystalline solid containing 3.10 grammes of ‘Ice’.
The total of 17.76 grammes of ‘Ice’, 2.85 grammes of heroin hydrochloride and 0.6 grammes of midazolam form the subject of Charge 2.
Other items were seized from the defendant, including two mobile phones and cash in the sum of $2,938.40.
At 1410 hours on 22 July 2020, the Room was checked in by the defendant with a female, he paid the rent in cash. On 23 July 2020, the defendant extended his stay for one day and paid with cash. The defendant further extended his stay for two days at 1210 hours on 24 July 2020 and paid with cash. The Hotel staff confirmed the Room was properly cleaned and was empty before the defendant checked into the Room.
The defendant now admits and accepts that at all material times, he knowingly possessed the seized drugs for the purpose of unlawful trafficking. The total estimated street value of the dangerous drugs seized was $29,159.
Defendant’s Background
The defendant is 51 years old. He is unemployed. He has been living with his aged parents in a public housing unit in Tsing Yi. He received up to Form 5 education. According to his antecedents statement, the defendant has no drug addiction. No claim of self-consumption was made.
The defendant has 21 previous convictions, three of which were for trafficking in dangerous drugs.
His criminal record showed several other drug-related offences from 1995 until 2011, consisting of possession of a pipe or equipment fit and intended for smoking/injecting/inhaling in 1997 for which he was sentenced to DATC, and offences of possession of dangerous drugs in 1995, 1997, 1998, 2003 and 2005, for which he was respectively sentenced to DATC or received imprisonment term.
His last conviction was in 2011 for two charges of possession of dangerous drugs, for which he received 6 months and 4 months’ imprisonment. He was last discharged from Tai Lam Correctional Institution on 8 August 2011.
Sentencing Principles and Tariff
Trafficking in a dangerous drug is a very serious offence. In sentencing, I shall follow the six-step approach enunciated by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. The first step is to assess the gravity of the offence, and identify the relevant guideline bracket applicable to the quantity of the drug concerned.
But before I do that, I should say that notably, the facts of this case are similar to HKSAR v Wan Lau Mei [2014] 4 HKC 75, a case concerning two charges of drug trafficking, involving the same criminality. The Court of Appeal said at paragraphs 27 to 30:
“[When sentencing] two trafficking offences where different quantities of dangerous drugs were found in the accused’s possession on the same day but at different locations,...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 sentence concurrent with one another.
Such an approach more truly reflects the accused person’s culpability as the reality of the situation was that on the day of the charge, the accused was in an overall possession of the drugs found at the two locations.”
The Court of Appeal said:
“It was an approach which ensure the accused’s final sentence was not artificially inflated by separating out the drugs for the two charges as though the accused had been guilty of two quite separate offences and then imposing consecutive sentences.”
I am therefore of the view that it is more appropriate to adopt what was suggested by the Court of Appeal in Wan Lau Mei in this case when I deal with both charges.
The drugs involved in both counts are as follows: ‘Ice’ in both charges add up to 31.33 grammes; for heroin, 2.85 grammes; for midazolam, 0.6 grammes.
‘Ice’
The sentencing guideline for trafficking in ‘Ice’ are found in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. According to the sentencing guidelines, for the quantity of 31.33 grammes of ‘Ice’, the defendant is in the band of 10 to 70 grammes where the starting point for traffickers after trial, subject to any enhancement, is 7 to 11 years’ imprisonment.
Heroin
Heroin and cocaine are equated for sentencing purposes and the tariff is fixed for heroin in R v Lau Tak Ming [1990] 2 HKLRD 370, as modified by HKSAR v Abdallah [2009] 2 HKLRD 437 apply.
According to the sentencing guidelines, for the quantity of 2.85 grammes of heroin, the defendant is in the band of up to 10 grammes of narcotic where the starting point for traffickers after trial, subject to any enhancement, is 2 to 5 years’ imprisonment.
Midazolam
Midazolam is equated with methaqualone for sentencing purposes: see 香港特別行政區 訴 蔡同祥(unreported, 29/11/2005, HCMA 759/2005) at paragraphs 4 to 5). In HKSAR v Yiu Chi Wai (HCMA 642/2017), the sentence for trafficking in quantities of midazolam under 500 grammes should be as the court thinks fit.
Now, the second step is to assess the defendant’s role and culpability based upon the evidence. In Herry Jane Yusuph at paragraph 59, these guidelines are based upon the courier or storekeeper, that is the least culpable of drug traffickers. Consequently, it will be necessary for the court to take a view of the role and the culpability of the defendant. The facts show that the defendant’s role in the present case was that of a person who was helping to distribute the drugs concerned. He is to be treated as a courier of dangerous drugs. That is the level at which I assess his culpability.
Overall Starting Point
In determining the proper overall starting point, I have reminded myself of the sentencing principle for trafficking in cocktail of drugs. There are three means of cross-checking the appropriateness of the overall starting point in cases involving trafficking in different types of drugs. See HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Chan Yuk Leong (CACC 318/2013), and HKSAR v Islam Majharul [2020] 3 HKLRD 146).
The defence and the prosecution have helpfully calculated the respective arithmetical starting points of each charge for my reference, using the ‘absurdity test’, ‘conversion test’, and ‘ratio test’ as explained in Chan Yuk Leong.
I set out the different starting points in a table form, which both counsel have accepted as correctly calculated. The calculation is based on the combined amount of drugs for Charges 1 and 2.
|
|
Calculation |
Starting point (after rounding it down) |
|
Sentencing guidelines |
Ice – 31.33 grammes
Heroin – 2.85 grammes
Midazolam - 0.6 grammes |
8 years 5 months
2 years 10 months
1 month |
|
Absurdity test |
Notionally adding up all drugs to arrive at a total of 34.18 grammes of “Ice” |
8 years 7 months |
|
Conversion test |
Converting all drugs into “Ice” to achieve the figure of 31.33 grammes of “Ice” (considering the relatively small amount of heroin in this case, it will not be possible to convert it into Ice):
|
8 years 5 months |
|
Converting all drugs into Heroin to achieve the figure of 68.47 grammes of Heroin |
8 years 5 months |
|
Ratio test |
The starting point of each drug on the basis of 34.78 grammes of narcotic x ratio:
Ice: 8 years 7 months * 90.08%
Heroin: 6 years 10 months * 8.19%
Midazolam: [0] * 1.73% |
8 years 3 months |
I will not take into account the small quantity of midazolam as it would have had a negligible effect on the overall sentence on the defendant. The circumstances that would apply to the sentencing for midazolam would be that it would be concurrent with the sentence for the other two drugs, especially because of the nature and quantity of the other two much more potent drugs, namely ‘Ice’ and heroin. In other words, any sentence imposed for midazolam would have no bearing on the total sentence.
Nonetheless, when conducting the ratio test, I will add the quantity of midazolam in the ratio in calculating the total amount of seized drugs to arrive at a fairer figure.
To achieve a reasonable and realistic sentence, I will adopt the combined approach and check whether the starting point to be adopted is fair and appropriate by cross-checking it against the absurdity test, the conversion test, and the ratio test as stated in the above table.
The combined approach would involve applying the guidelines for ‘Ice’, being the more serious drug in terms of potency and quantity. The starting point for 31.33 grammes of ‘Ice’ is 8 years 5 months’ imprisonment, which should be adjusted upwards to take into account the remaining 2.85 grammes of heroin. Having cross-checked the three tests, looking at the matter in the round, I consider that the notional starting point of 8 years 6 months would be appropriate in the present case.
I also had regard to the aggravating features of this case.
First, three different kinds of drugs were involved in the present case. It is a factor recognised by the court as deserving of an enhanced sentence, even though separately packed and not in a prepared mixture, because in such a situation, the trafficker is able to cater to a far wider market: See Chan Yuk Leong, at paragraphs 23 to 25).
I remind myself that in determining an enhancement to a sentence by any aggravating factor, I should ensure the overall starting point should be proportionate to the actual sentence, the degree of enhancement should be in reasonable proportion to the basic sentence and the total ultimate sentence should not be excessive. I add an additional sentence of 3 months.
Second, the defendant appears before me as a person who has 21 previous convictions, 15 of which are drug related. The majority are for the offence of possession of a dangerous drug, but three of them are for trafficking in a dangerous drug and they were in 2002, 2003, and 2006. For the 2002 offence, he was sentenced to 4 months. For the 2003 offence, he was sentenced to 16 months’ imprisonment. For the 2006 offence, he was sentenced to a total sentence of 5 years and 5 months’ imprisonment. It was clearly a serious matter.
However, from what is known of the defendant’s background, and looking at the criminal records, it would appear those offences were associated with his drug addiction. The defence stress that the prior convictions occurred back in 2006, some 14 years before the present offence as well as the defendant’s prior history of drug conviction before 2011. I consider that in the circumstances of this case, I will not enhance the sentence.
Then, I am required to have regard to all mitigating factors. The Court of Appeal made clear in Herry Jane Yusuph, in cases of this nature, personal circumstances will count for little unless they are exceptional.
As such, the only real mitigating factor in this case is his timely plea of guilty. Having reduced by one-third for the defendant’s guilty plea, his sentence would be 70 months, that is 5 years and 10 months’ imprisonment.
The 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 the offender. I am of the view that the ultimate sentence of 5 years 10 months’ imprisonment is appropriate and is not out of proportion to the defendant’s overall criminality.
I therefore impose a sentence of 5 years 10 months’ imprisonment on both Counts 1 and 2, and I further order that the sentence for Count 2 shall be served concurrently with the sentence for Count 1.
The final sentence I would impose on the defendant is one of 5 years 10 months’ imprisonment.