COURT: The defendant was charged with one count of trafficking in a dangerous drug involving 66.3 grammes of methamphetamine hydrochloride (commonly known as ‘Ice’). It is alleged that he, on 23 August 2021, trafficked in the quantity of ‘Ice’ inside a taxi, outside Henley Industrial Centre in Mong Kok.
The defendant pleaded guilty at the Magistrates’ Court on 26 September 2022 and was committed to this court for sentence. He was first brought before me on 19 December 2022 and the case has since been adjourned twice to today for enquiries and follow-up to be made concerning the assistance he had given or purportedly given to the police.
Facts of the case
The facts giving rise to the offence as admitted by the defendant are as follows:
At around 3 am on 23 August 2021, a team of uniformed police officers were on patrol in Mong Kok. One of the police officers spotted a stationary taxi with its engine running outside Henley Industrial Centre. The defendant and his girlfriend were sitting at the back passenger seats of the taxi. The taxi driver, a man surnamed Ip, was inside the taxi as well. Feeling suspicious, the police approached the taxi to make enquiries. The defendant, his girlfriend, and the taxi driver Ip were told to alight the taxi.
The police conducted a search of the taxi, and found a paper bag underneath the front passenger seat. Inside the paper bag was a blue and white plastic bag, which contained a total of 19 resealable plastic bags containing suspected dangerous drugs, namely:
(a) one resealable plastic bag with a red line which contained:
(i) one resealable plastic bag with a red line with the number six on the packet containing suspected dangerous drugs; and
(ii) one resealable plastic bag containing eight resealable plastic bags containing suspected dangerous drugs.
(b) two resealable plastic bags containing suspected dangerous drugs;
(c) one opened facial mask bag containing five resealable plastic bags containing suspected dangerous drugs; and
(d) one yellow paper bag containing 3 resealable plastic bags containing suspected dangerous drugs.
These 19 plastic bags of suspected dangerous drugs were subsequently examined and confirmed to contain 68.2 grammes of a crystalline solid containing 66.3 grammes of methamphetamine hydrochloride, ‘Ice’.
At around 3.20 am on the same day, the defendant and his girlfriend were arrested by the police. Under caution, the defendant admitted that he was delivering ‘Pork’ for someone. The police also found cash of around $27,900 and a mobile phone on the defendant.
In a subsequent video-recorded interview, the defendant stated under caution that:
(a) By ‘Pork’, he meant the drug ‘Ice’, which he delivered for a triad faction.
(b) About half a year ago, he was recruited by someone named ‘Wah Suk’ to join a chat group, and he later received instructions in the chat group from someone named ‘Siu Mui’, asking him to traffic in dangerous drugs.
(c) Afterwards, someone with an account named ‘Coke’ contacted him via the chat group and asked him to deliver dangerous drugs.
(d) He was asked to deliver the drugs via taxi, and was introduced to a taxi driver. He would receive $300 for each delivery. After the deliveries were done, he would receive a call from someone named ‘Luen Mo’ to hand over the cash.
(e) He took his first job on 18 August 2021, and had completed five to six deliveries before he was arrested.
(f) On the day of the offence, he had made delivery of three packets of dangerous drugs to three different persons via taxi before he was intercepted by the police and arrested. He was paid $1,300 for each delivery.
(g) Of the money seized from him, $3,900 was the money made from trafficking in dangerous drugs on the night of his arrest and the remaining sum of money was his savings.
The estimated street value of the ‘Ice’ seized at the time of the offence was around $46,800.
Defendant’s Background
The defendant is now aged 19 years old. He was 16 years and 11 months old at the time of the offence. He was born and raised in Hong Kong and he received education up to Form 3 level.
Before his arrest, the defendant lived with his mother, his stepfather, his younger sister, and younger brother. The defendant has no previous conviction record and it was said on the defendant’s behalf that he had never abused or taken any dangerous drugs before.
In mitigation, Ms Yip also told the court that the defendant was very close to his late grandfather, who took care of him when he was young, and the defendant was very sad and distressed when his grandfather passed away during the pandemic in July 2022, whilst the defendant was at the time remanded in custody.
Mitigation
In mitigation, the defendant was portrayed as a filial son. He was brought up in a single-parent family. His mother had to work very hard to support the defendant and his two younger siblings. The defendant used to work as a part-time waiter in restaurants in the hope of alleviating his mother’s heavy burden. However, right before the offence in question, the defendant could not find any part-time job due to the pandemic, his young age, and limited education.
Ms Yip submitted that the defendant was young and would easily be manipulated by others. He committed the offence as he was at the time desperately in need of money and, he took the risk without thinking through the serious legal consequences of his actions.
The court also received a mitigation letter written by the defendant himself, in which he expressed remorse and regret for his wrongdoing, and his determination to turn over a new leaf. He also informed me that he plans to resume his study and learn a new trade whilst in prison so that he can support his family and contribute to society upon his eventual release.
As to the defendant’s role in the offence in question, Ms Yip described the defendant as no more than a mere courier, in her words, “running errands and doing the deliveries as a foot soldier”. Ms Yip also urged me to take into account that the defendant was very co-operative with the police and made frank and clear admissions under caution in his video-recorded interview regarding the modus operandi of the operation and the people involved in the drug trafficking activities.
Furthermore, in mitigation, the court was informed about the assistance given by the defendant to the police by way of a non-prejudicial statement dated 25 November 2022 in which the defendant provided further details of the role and involvement of the taxi driver and others involved. By way of an independently verified statement dated 8 March 2023, the police confirmed initially that they considered the information provided by the defendant to be of “practical use”. Subsequent to his first appearance before me on 19 December 2022, the defendant provided a second non-prejudicial statement on 10 March 2023. On the basis of these NPS, non-prejudicial statements, provided by the defendant, the taxi driver (who was at one stage released with the charge against him for trafficking withdrawn) was rearrested and charged on 14 March 2023. However, I have now been told that the defendant has decided to renege on his promise to further assist, which has seriously undermined the assistance he previously rendered to the police. I will deal with the ramification of this change in circumstance later on.
Sentencing Principles and Tariffs
The courts of Hong Kong have consistently taken a serious view on drug trafficking. The courts have established sentencing guidelines in the form of tariffs for various forms of dangerous drugs, including ‘Ice’, the subject drug in the present case.
The six-step approach in relation to sentencing of drug traffickers is clearly set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, as complemented by the recent judgment of the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.
As the first step, the court assessed the gravity of the offence by looking at the type and quantity of the drug concerned. ‘Ice’ is the drug involved in the present case and for any amount of ‘Ice’ between 10 grammes and 70 grammes, the relevant sentencing guideline as stipulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 suggests the sentence between 7 years and 11 years’ imprisonment.
The court should then proceed to assess the role and culpability of the defendant. It is submitted by Ms yip that the defendant’s role in this case is one of a mere courier, and having considered the circumstances of the offence, I am prepared to accept such a submission. As such, I do not enhance the sentence on account of the defendant’s role and based on a strictly mathematical calculation, I arrive at a starting point for the quantity of ‘Ice’ involved of 10 years and 9 months’ imprisonment.
Next, the court should consider whether there are any aggravating factors warranting an enhancement of the starting point. I accept that there is no such aggravating feature present in this case.
The court will then proceed to have due regard to all mitigating factors. As the defendant made a timely and early plea of guilty at the committal stage, I am prepared to give a full one-third discount to him in accordance with the sentencing approach in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.
The reneging of assistance provided to the authorities
As mentioned above, the defendant had initially provided assistance to the police by way of an NPS which was considered by the police to be of practical use at the time. In normal circumstances, this would require the court to consider the possibility of giving a further discount for this additional mitigating factor.
However, as the matter transpired, the defendant has now decided to renege on his promise to assist and refused to testify against the others involved, including the taxi driver Ip. This decision of his is clearly detrimental to the prosecution of Ip. Indeed, the police have now confirmed by way of a further statement of 20 February 2024 that the information provided by the defendant to the police has not been of any practical use.
As the Court of Appeal held in HKSAR v Baljit Singh [2020] 4 HKLRD 598 at paragraph 62:
“The court must guard against the dishonest manipulation of the sentencing process by a defendant...if an offender reneges on the promise of assistance or undermines the assistance rendered, these are matters that can properly be taken into account when determining the final sentence to be passed on the offender. Where this has occurred in rendering assistance to the authorities, further action may be taken against a defendant depending upon the circumstances of the case, but the end result in respect of his sentence will mean that he will lose any reduction he would otherwise have received if he kept his promise and assisted the authorities.”
In the present case, defendant had initially indicated his willingness to testify against other persons involved including Ip. In fact, the case was adjourned so as to allow for the defendant’s assistance to be more fully explored, so that the court would be in a better position to assess and understand the degree of assistance given by the defendant and whether that assistance is to be considered helpful or of practical use.
However, the defendant now refuses to provide that assistance, the effect of which is, I am told, detrimental to the case against the taxi driver. In fact, the circumstances in which this reneging occurred may indeed call for further actions to be taken which I think is a matter to be followed-up separately by the authorities.
That said, I accept that the reneging of a promise should not aggravate the original offence. It may however mean that the defendant will be deprived of the reduction of sentence which would have been allowed if he had kept his promise to assist and testify (see paragraph 61 of Baljit Singh, quoting paragraph 30 of R v P [2008] 2 Cr App R (S) 5).
For the purpose of the present case, I do not find it appropriate to give any additional discount to the defendant. His actions have had a detrimental effect on the case against the taxi driver, Ip, and constitutes a clear reneging of his promise to the police. This falls squarely within the scenario mentioned in Baljit Singh. Hence, the defendant will only receive a full one-third discount for his early plea as I have mentioned. This would reduce the sentence from the starting point to one of 7 years and 2 months’ imprisonment.
The last step of the sentencing process is to stand back and look at the overall sentence passed in order to ensure that it is fair and just. Having considered the circumstances of the offence, the defendant’s background, and what can be said on his behalf by Ms Yip in mitigation, I take the view that the ultimate sentence of 7 years and 2 months’ imprisonment is an appropriate one.
Hence, the defendant, I sentence you to 7 years and 2 months’ imprisonment.