COURT: The defendant has pleaded guilty to one count of trafficking in a dangerous drug and one count of possession of a dangerous drug. On 24 May 2021, the defendant unlawfully trafficked in a dangerous drug, namely, 695 grammes of a mixture containing 582 grammes of heroin hydrochloride at Room 1278, Harbour Plaza Metropolis Hotel, No. 7 Metropolis Drive, Hung Hom, Kowloon. These are the particulars of Count 1.
The particulars of Count 2 are that the defendant on the same day, outside that same hotel, Harbour Plaza Metropolis, had in his possession dangerous drugs, namely, 0.23 grammes of a mixture containing 0.19 grammes of heroin hydrochloride.
On the material day, police officers stopped the defendant as he left the Harbour Plaza Metropolis Hotel and searched him. They found a bag containing 0.23 grammes of a mixture containing 0.19 grammes of heroin hydrochloride in his trouser pocket, the drugs of Count 2. They also found a hotel room key card, a mobile phone and $23,179.60 in a bag.
The defendant was arrested and cautioned and admitted that the bag of heroin found in his pocket was for his own consumption.
The police then used the hotel room key card found in his bag to gain access to Room 1278 in the same hotel. The room was searched and the police found inside a dressing table drawer two blocks of heroin that were cut open. The first block contained 348 grammes of a mixture containing 288 grammes of heroin and the second block contained 347 grammes of a mixture containing 296 grammes of heroin. They also found a cutter and a bundle of resealable plastic bags. The defendant was arrested again and cautioned at the scene whereupon he admitted that the heroin found in the drawer was intended to be sold to others to make money.
The police confirmed that the defendant had booked the room for three nights from 24 May 2021. When he checked in that evening, not long before his arrest, he was in the company of another man.
According to an expert, the estimated street value of the heroin seized was about $787,696. The defendant now admits he was in possession of the heroin seized in the room for the purposes of unlawful trafficking.
Mitigation
The defendant is 57 years old and divorced from his wife many years ago. He has a 27-year-old daughter living with his ex-wife. At the time of his arrest, the defendant was living with his girlfriend in Kowloon. He had been employed as a driver but due to the pandemic, he had been unemployed for over six months. He was also a habitual drug abuser. He is not a man with a clear record. He has six previous convictions of which three are related to possession of dangerous drugs.
His best mitigation is his plea of guilty. Counsel urges me to consider concurrent sentences for both counts in view of the facts and the particulars and nature of the charges. I will add that the defendant’s best mitigation is his plea of guilty. Mr Leung has said all he can say on behalf of the defendant.
Trafficking Guidelines
I have considered all mitigation, facts of the case, as well as the tariff guidelines for both trafficking heroin hydrochloride, as well as being in possession of the same drug for consumption.
I have considered the approach to sentencing those that traffic in dangerous drugs.
With the Court of Appeal’s guidance in the most recent authority, HKSAR v Lee Ming Ho [2024] HKCA 150, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
In the approach to sentencing, a number of steps have been identified which the court should take, such as assessing the gravity of the offence and applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors, and lastly passing a sentence which is fair, just and balanced in all of the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug. The sentencing guidelines for heroin is found in the authority of R v Lau Tak Ming and Others [1990] 2 HKLR 370, and the starting point for trafficking between 400 and 600 grammes of heroin, is 15 to 20 years’ imprisonment. Therefore, trafficking in 582 grammes of heroin in Count 1 would mathematically attract a starting point of 19 years and 7 months’ imprisonment.
As far as the second step is concerned, assessing role and culpability, I accept the submission that the defendant appears to have stored the drugs, acting as a storekeeper.
Therefore, taking into account the third step, his sentence is to be determined by the relevant tariff. I intend to take a mathematical approach to his starting point. I will take a starting point of 19 years and 7 months’ imprisonment.
The fourth and fifth steps require me to consider whether there are any aggravating factors or any exceptional mitigating factors. I do not find either exist.
The defendant pleaded at the earliest opportunity and is entitled to a one-third discount. After that discount is applied and rounded down, I sentence the defendant to 13 years’ imprisonment for Count 1.
The last step to take is to stand back and look at the overall sentence in order to ensure that it is fair, just and a balanced sentence in all the circumstances of not only the offence but also the defendant. It is a significant term of imprisonment but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced or unjust.
As for Charge 2, possession of 0.19 grammes of heroin, I have taken into account the defendant is or was at the time of his arrest more than likely a drug addict. I have considered HKSAR v Mok Cho Tik [2001] 1 HKC 261 and the Court of Appeal’s view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months.
There is also the latent risk factor to consider, that is the latent risk to society when drugs are at large, in the sense that they are possessed by a drug addict who here admits he also stored or sold the same drugs. A latent risk fact can justify an enhancement to a starting point. For this charge of possession of dangerous drugs, I will take a starting point of 18 months’ imprisonment. After the full one-third discount is applied, the defendant is sentenced to 1 year’s imprisonment for Count 2.
In conclusion, the defendant for Charge 1 is sentenced to 13 years’ imprisonment. Charge 2, the defendant is sentenced to 1 year’s imprisonment. Taking into account the totality principle as I have said and the facts of the case, I will order that the sentences for both charges to be served concurrently.
Accordingly, the defendant is sentenced to a total of 13 years’ imprisonment.