The defendant pleaded guilty to two charges of drug trafficking, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Charge 1 involved 26.7 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’, and Charge 2 involved 595.9 grammes of ‘Ice’ and 888.4 grammes of heroin hydrochloride. These figures represent the narcotic contents only.
Admitted Facts
The defendant was intercepted by the police when he was leaving a building in Portland Street. The police found the dangerous drug in Charge 1 in the defendant’s underwear. They also found $140,000 of cash in the plastic bag that he was holding, $9,780 in his wallet and two mobile phones on him. He was brought back to his residence in that building where the dangerous drugs in Charge 2 were found.
The estimated street value of all the drugs in this case is around $1,092,397.
Under caution, the defendant made the following statements. He received instructions from a drug supplier to sell the drugs. He specified the selling prices of some of the drugs. In relation to 291 grammes of the heroin in Charge 2 which is designated in the Admitted Facts as E8, he stated that he bought it at the price of $11,000 to $12,000 and that he would break down the block and sell the smaller broken pieces to others. He estimated that E8 could be sold at the range of $150,000 to $160,000.
Antecedent and Criminal Record
The defendant was born in 1956. He was aged 65 years at the time of offence and is now 67 years old. He received education up to secondary school level. He was a decoration worker at the time of arrest. He was a member of a triad society.
He has ten previous convictions, all related to dangerous drugs. Four of them were trafficking in dangerous drugs, respectively sentenced in 1976, two in 2006, and the last one in 2016. He was discharged from prison for the last one in June 2020. The defendant claimed that he was an ‘Ice’ abuser taking about 1 gramme of the drug per day.
Mitigation
On behalf of the defendant, Mr Wong confirmed that the defendant admitted the antecedent statement prepared by the police on 8 November 2022 and his criminal record. In terms of the defendant’s background, Mr Wong submitted the following. The defendant is married, but living apart from his wife. His parents have passed away and he has no children. He has an elder sister who is living abroad. He was a decoration worker in 2021 to 2022. He was an ‘Ice’ user.
In terms of sentence, Mr Wong submitted that the combined approach should be adopted. He submitted that the defendant was selling drugs under the instructions of a drug supplier called Chan Kor for a daily wage of $1,500 and that he would hand over all the proceeds to Chan Kor.
The Court of Appeal released its judgment in HKSAR v Lee Ming Ho, CACC 130/2019, [2014] HKCA 150 this morning. I have given a copy of the judgment to Mr Wong and Ms Lau for the prosecution. Having been given time to study the judgment, Mr Wong urged the court not to treat the defendant’s previous convictions as an aggravating factor but if that is not accepted, then the enhancement should be a matter of months only.
Discussion and Sentence
There are a total of 622.6 grammes of ‘Ice’ and 888.4 grammes of heroin in this case. It is apparent that the ‘Ice’ in Charge 1 came from the batch at his residence, and as the sentencing guidelines for quantities of over 600 grammes are the same for ‘Ice’ and heroin, I agree with Mr Wong that the combined approach should be adopted. In other words, insofar as the quantity (not variety) of drugs is concerned, I treat this case as involving a total of 1,511 grammes of either ‘Ice’ or heroin.
With the Court of Appeal’s guidance in HKSAR v Lee Ming Ho, I now consider the six steps as stipulated in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
The amount of ‘Ice’ or heroin in this case is 1,511 grammes in narcotic contents. According to HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and HKSAR v Abdallah [2009] 2 HKLRD 437, trafficking in 1,200 to 4,000 grammes of ‘Ice’ or heroin will attract a starting point for sentence of 23 to 26 years of imprisonment. This band applies to defendants who are couriers or storekeepers.
On a strict arithmetical basis, the starting point for the quantity in this case should be one of 23 years 4 months for a courier or storekeeper.
The defendant claimed under caution that he was selling the drugs on the instructions of his supplier. The prosecution informed the court that they accept the defendant was a courier. I accept this. However, the defendant admitted under caution that insofar as E8 is concerned, he bought it at the price of $11,000 to $12,000 and he would break down the block and sell the smaller broken pieces to others at a total estimated price of $150,000 to $160,000. In my judgment, insofar as E8 is concerned, his role was more than a courier. That said, I bear in mind that E8 only represents 19 per cent of the total drugs involved.
In the circumstances, I adopt a starting point for sentence of 24 years of imprisonment.
The defendant has four previous convictions of trafficking in dangerous drugs, respectively sentenced in 1976, two in 2006 and 2016. The one in 1976 was recorded a long time ago and the defendant was only 20 years old then. The sentence was 3½ years’ imprisonment imposed in the District Court. Had the defendant had this previous conviction only, I would not regard it as an aggravating factor.
However, the defendant also has three other more recent convictions. In the two convictions in 2006, he pleaded guilty and was sentenced to concurrent terms of 6 years’ imprisonment in the High Court. In the latest one in 2016, also involving ‘Ice’ (91.2 grammes) and heroin (2.29 grammes), he pleaded guilty and was sentenced to 7 years 6 months’ imprisonment also in the High Court. He was discharged from prison for that in June 2020 and he committed the present offence 22 months later and which involves even greater quantities of ‘Ice’ and heroin.
I regard the defendant’s previous conviction of trafficking in dangerous drugs as an aggravating factor and for this, I increase the starting point by 9 months.
It is an aggravating factor for an accused to traffic in a variety of drugs as the trafficker will be able to cater to a far wider market than the trafficker in only one drug (see HKSAR v Yim Hung Lui Ricky, CACC 266/2011, HKSAR v Islam Azharul [2020] 1 HKLRD 644). If the accused has access to different types of dangerous drugs in large quantities, this is also an aggravating factor as the potential harm to Hong Kong is much greater (see HKSAR v Butt Muhammad Gulzar [2020] 3 HKLRD 805). For these reasons, I increase the starting point by 3 months.
The starting point for sentence in the present case is therefore one of 25 years’ imprisonment.
The defendant pleaded guilty at the earliest opportunity. He is entitled to a full one-third discount, thus bringing down the sentence to 16 years and 8 months’ imprisonment. There is no other mitigating factor in the case.
Since I have adopted the combined approach and in light of the facts of the case, it will be artificial to specify a separate starting point for each of the charges. Having considered all the circumstances of the offence and the defendant, a fair, just and balanced sentence is one of 16 years and 8 months’ imprisonment on both charges to be served concurrently.
The defendant is sentenced accordingly.