COURT: The defendant pleaded guilty to the charge of conspiracy to traffic in dangerous drugs before me. The charge is one contrary to sections 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Chapter 134, and sections 159A and 159C of the Crimes Ordinance, Chapter 200. He did not plead guilty at the time of the committal but he pleaded guilty before me on 2 July this year.
According to the Summary of Facts to which he agreed at the time of plea, at the material time, a boy, Li Pui-lam, was a minor. He was a 15-year-old drug user. In late July 2020, the defendant acquainted with Li when Li sought to obtain dangerous drugs from him. Later, on a day in early August 2020, he brought Li to a hotel room in Chungking Mansion and introduced him to another male which I will address as D1 in this case. In this room, both D1 and the defendant, they asked Li to help them to deliver drugs for a reward of $500 remuneration each time. Li agreed.
Li then stayed in Room 507 of the same hotel to wait for delivery jobs, and a total of six deliveries had taken place between 9 and 11 August 2020 involving approximately 507 grammes of herbal cannabis, five pills of MDMA (also known as ‘Ecstasy’) and also about 6 grammes of ‘Ice’.
I would not go into the details of all those deliveries. Suffice to say that on one occasion, he received $1,300 from the customer after the delivery, and he handed over that amount of money to the defendant afterwards. In respect of all the other occasions of deliveries, he received $500 of reward from the defendant soon after the delivery.
Li himself was arrested by the police on 12 August 2020.
The defendant admitted under caution that he knew Li and D1. He said that he knew Li was trafficking dangerous drugs for D1 but denied his own involvement. By his plea and by his admission of the facts, the defendant now accepts and admits that at the material time he conspired together with D1 and Li to unlawfully traffic in dangerous drugs, and fully accepts that he knew Li was a minor at the material time.
In respect of his background, the defendant is 37 years of age now. He has received Form 5 education. He is single but he has a girlfriend. Before his arrest, he used to live together with his girlfriend, her son and also his mother. He was a part-time air-conditioning technician beforehand. He has a total of three criminal convictions, including two convictions for the offence of possession of dangerous drug and one conviction for the offence of trafficking in dangerous drug, for which he was sentenced by the High Court on 12 August 2015 to 4 years and 8 months’ imprisonment. He was discharged from prison on 13 May 2016.
In mitigation, defence counsel, Mr Roy Lau, submitted that he was 33 years old at the time of the offence. Counsel said he came from a broken family and he had been nice to his family members, including his girlfriend and also the son of his girlfriend. He asked the court to pay attention to the fact that he has already been released from prison for about four years before the commission of the present offence.
The defendant has written a mitigation letter to ask for leniency, and counsel also drew this court’s attention to his health condition. Apparently, he was suffering from chronic pain in his left foot and skin problems, and that he had been suffering from the foot problem for some years before the present offence. Whilst he was in custody, he underwent wide local excision of the left foot tumour, partial-thickness skin grafting and left radical groin dissection in year 2021. He had also received surgery in respect of his condition, and according to the medical report, he remained well on the latest follow-up on 15 August 2023.
Counsel asked this court to exercise leniency and give him some further discount because he had gone through a period of pain during the treatments.
In respect of the present offence, counsel said that he committed the offence because of financial difficulty and because of his suffering from the chronic illness. Counsel said that even though a minor, Li, was involved, the defendant was not the mastermind of the operation. Counsel said that D1 was indeed the mastermind and that he was only acting for D1 who was the defendant’s godfather. Counsel submitted that indeed he was under the control of D1 but, of course, that was not a matter one can see from the Admitted Facts.
Counsel also asked this court to take into account the fact that the minor was not recruited by him but by the godfather, D1. But according to the Summary of Facts, he was actually recruited by both of them in the hotel room together.
Counsel said that no violence or threat had been used upon the minor, and also the defendant did not arrange for any storage facility.
Counsel asked this court to take into account the fact that during his period of remand, the defendant has been a donor to the United Nations High Commissioner for Refugees from May 2023 up to now. He pleaded guilty, even though not at the time of the committal proceedings, but he indicated his guilty plea to this court early enough on 7 September 2022, and counsel asked this court to award him a discount of not less than 25 per cent because of that plea.
In sentencing the defendant, I bear in mind the approach mentioned by the Court of Appeal in the case of Herry Jane Yusuph [2021] HKLRD 290 and Lee Ming Ho [2024] 1 HKLRD 1186.
In the case of Herry Jane Yusuph, a total of six different steps were being considered as the proper approach in the sentencing for cases of drug trafficking. Also in the case of Lee Ming Ho, the Court of Appeal pointed out that a person’s position in the hierarchy of the drug-trafficking syndicate and the fact that a minor or a young person is engaged to assist in the trafficking are factors that go to the starting point, and that a person’s previous record of trafficking in dangerous drug is an aggravating factor.
In this particular case, the defendant had trafficked in a total of three kinds of drugs, namely, about 6 grammes of a crystalline solid of ‘Ice’, about 507 grammes of herbal cannabis and five tablets of MDMA (also known as ‘Ecstasy’).
In respect of the amount of ‘Ice’, according to the guideline case of Tam Yi Chun [2014]3 HKLRD 691, trafficking in up to 10 grammes of ‘Ice’ will attract a starting point of 3 to 7 years’ imprisonment after trial.
In this particular case, the total amount of the crystalline solid of ‘Ice’ involved is about 6 grammes. However, the exact purity of the ‘Ice’ is not known. I make reference to the purity of the ‘Ice’ stated in the 2nd count on this indictment which does not include or involve this particular defendant but involves the trafficking between Li and the other person called D1 in about that period of time. According to the purity of the ‘Ice’ stated in the 2nd count, the purity is one of 99.47 per cent. So adopting the same purity in this particular case, for 6 grammes of crystalline solid of ‘Ice’, I will adopt a purity of about 5.9682 grammes of ‘Ice’, and that, according to the case of Tam Yi Chun, will attract a starting point of 64 months. That is 5 years and 4 months’ imprisonment.
In respect of the 507 grammes of herbal cannabis, because the offence occurred back in year 2020 before the new guideline, so the old guideline of Tuen Shui Ming [1995] 2 HKC 798 applies. According to that guideline, trafficking in under 2,000 grammes of herbal cannabis would attract a sentence of up to 4 months’ imprisonment. So according to the mathematic calculation, in respect of 507 grammes of herbal cannabis, it will attract a starting point of about 1 month’s imprisonment.
Now, for MDMA, the appropriate guideline case is one of Hii Siew Cheng [2009] 1 HKLRD 1. According to the Hii Siew Cheng case, to traffic between 1 to 10 grammes of MDMA would attract 2 to 4 years’ imprisonment, and trafficking up to 1 gramme of MDMA, the sentence would be one resting with the judge’s discretion but up to 2 years’ imprisonment.
There is no information as to the weight or the purity of the MDMA involved. In the Summary of Facts, it was only mentioned that five pills of MDMA were involved in the delivery. I accept the submission of the defence counsel by making reference to the expert opinion of Professor K Lee in the authority of Hii Siew Cheng, that is, the purity is between 80 mg to 150 mg per pill. “Mg” stands for milligram.
For the present case, a total of five pills were involved. So to time 80 mg with five pills, the ultimate weight involved is 400 milligrams. That is 0.4 gramme. So with an arithmetic calculation, according to the guideline case, it should attract a sentence of 9.6 months, and I would round it down to 9 months’ imprisonment.
To sentence the defendant on the individual approach would produce a sentence of 74 months, which appears to be on the higher side and may not properly reflect the justice of the case. And to achieve a reasonable and realistic sentence, I agree that the combined approach should be adopted. This approach involves an upward adjustment from the starting point of the base drug.
In this case, ‘Ice’ is treated as the base drug because it is more potent in nature. Given the huge quantity of herbal cannabis involved in this case and the difference in the nature of the drugs involved, after calculation, I agree that to apply any one of the absurdity test or conversion test or ratio test cannot reveal any meaningful and proper sentence of the situation.
Taking into account the amount of the herbal cannabis and the MDMA involved, the fact that the three types of drugs can cater for a wider market, I decide to make an upward adjustment of 4 months to the starting point for the base drug of ‘Ice’, that is, 64 months plus 4 months equals to 68 months’ imprisonment.
In respect of the role and the culpability of the defendant, I bear in mind the duration of the conspiracy and the scale of the conspiracy. Even though he was not the mastermind of the syndicate, on the facts agreed, it is clear that he was the recruiter of Li, the minor, and also he was the actual operator of the syndicate. According to the facts, Li, the 15-year-old minor, assisted in a total of six deliveries of multiple types of drugs within a short period of two days.
The defendant was the person who introduced the minor to D1, and the defendant was the person who gave direction and gave instruction to Li with regard to each of the deliveries, and he was responsible to pay Li who acted as a courier in this case. He also received the drug money of $1,300 paid to Li by the customer.
Bearing in mind his involvement, his role and culpability in this case, and the fact that section 56A of the Dangerous Drugs Ordinance empowers the court to enhance the sentence of a defendant for trafficking in dangerous drug in situations that involve the hiring or the use or employing a minor in the commission of the offence, I consider that the proper enhancement is that of 1-month imprisonment. Therefore, the starting point is enhanced to 6 years and 3 months altogether. That is 75 months.
To this regard, I have regard to cases such as the case of Ng Hon Keung [2012] 1 HKLRD 1017, Chan Ka Shing [2012] 2 HKLRD 220, Leung King Hung [2024] HKCA 69 and Ho Pak Hong [2022] 1 HKLRD 951.
In respect of the mitigating factors, according to the documents submitted in mitigation, it appears that the defendant had contributed a total of $550 to the United Nations High Commissioner for Refugees between the period of May 23 to April this year, that he was suffering from certain medical condition and he had received proper treatment whilst he was remanded in custody.
I do not agree that for those matters he should be entitled to any further discount. The contribution that he made to the United Nations High Commissioner for Refugees in the past year was of an insignificant amount and that was not done until recently, that is, until May year 2023.
In respect of his medical condition, indeed he was suffering from some of the medical conditions even before he was arrested or committed the present offences, and he had received proper treatment whilst in custody. He remained well on the latest follow-up, and his tumour and the chronic skin problem are now well under control. I decline to give him any further discount for those two matters, that is, the medical condition or the donation.
In respect of the discount that he is entitled to by pleading guilty, according to the authority, any plea after a trial day has been fixed and before the date of the trial will entitle the person to a discount between 20 to 25 per cent. The defendant was arrested in connection with the present case on 13 August 2020, and he first appeared in court on 15 August 2020. He was committed to the High Court for trial on 6 December 2021. Thereafter, on 25 February 2022, the case was fixed for trial in the Court of First Instance. The trial day or the original trial day was from January to February in year 2023 even though it was later adjourned due to different unexpected reasons.
It was not until 7 September 2022 that he informed this court of his intention to plead guilty. So he pleaded guilty sometime after the trial day was first fixed but before the trial. Indeed, 7 September 2022 is about four months before the original trial day in January 2023. Eventually, he pleaded guilty before me on 2 July this year.
Taking into account the whole situation and the time that he pleaded guilty, I consider that a 24 per cent discount is appropriate instead of a 25 per cent discount, thereby reducing the sentence from 75 months to 57 months. So the defendant is sentenced to a sentence of 4 years and 9 months ultimately, and that is the sentence that I impose for him: 4 years and 9 months’ imprisonment.