COURT: Defendant, you are charged with a single charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and 4(3) of the Dangerous Drugs Ordinance, Chapter 134.
The particulars of offence avers that you on the 19th day of May 2022, at Room B, 13th Floor, Block 1, Prosperity Court, No. 168 Lai Chi Kok Road, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely:
(1) 10.02 grammes of cannabis, in herbal form;
(2) 9.88 grammes of a crystalline solid containing 9.72 grammes of methamphetamine hydrochloride;
(3) 18.27 grammes of a solid containing 16.46 grammes of cocaine; and
(4) 37.15 grammes of a mixture containing 26.72 grammes of heroin.
According to the Summary of Facts which you have admitted, in the afternoon on 19 May 2022, a team of police officers were conducting an anti-narcotics operations in plainclothes at Block 1, Prosperity Court at Lai Chi Kok Road, Mong Kok.
The police officers there laid an ambush and then at about 5.34 pm, you were walking towards Flat 13B and while you were opening the gate of the flat, the police dashed out and revealed their identities and intercepted you. You were immediately brought into the flat for investigation.
Inside the flat, there were both a male and a female found in a bedroom near the toilet. You were searched immediately and the police found on you a mobile phone and cash of $4,240. Subsequently, the flat was searched by the police and inside various places inside the flat, including the living room and the various rooms of the flat, the subject matters of the dangerous drugs as particularised in the charge were seized.
The total average retail price of all the seized drugs according to the facts at a time when you were arrested (i.e. in May 2022) was about $57,778 to $65,780.
You were arrested for the offence of trafficking in dangerous drugs and under caution, you admitted that you possessed all the drugs. Subsequently, a video-recorded interview was conducted with the assistance of a Vietnamese interpreter and under caution, you told the police that you bought the drugs from a male at the Maple Street Playground in a sum of $10,000. And you also told to the police that you worked as a renovation worker and earned about $30,000 per month.
You told the police also that you last bought the drugs in early May and the drugs found inside the flat could last for a few months, and despite your statement to the police that you possessed the drugs for your own use, by the admission of the facts, you admitted that you possessed the drugs seized for the purpose of unlawful trafficking.
In fact, you pleaded guilty later on in the Eastern Magistrates’ Court and admitted the Summary of Facts and the case was committed to the Court of First Instance for sentence today.
The background and the antecedents of the defendant
The defendant is now aged 67. You were born in Vietnam in 1957, and you were a construction worker. At the time of the offence, you claimed to be earning $30,000 per month.
In the past you have altogether 24 convictions and you were brought up in court in no less than 19 occasions. Out of all the offences that you have been convicted, eight were in relation to drugs, and in particular there were one similar trafficking in dangerous drugs offence record.
You have an education of only Form 1 level and according to your counsel, I was informed that you were in fact married but the lady you have married were a mainlander who already came to visit you and informed you that she is going to divorce you, and that is why earlier when you were interviewed by the police, you thought you were single and you told the police that you were a single person.
Sentencing consideration
Your counsel have written to me a detailed written mitigation setting out the sentencing principles and calculated, on your behalf, the tariffs in respect of the drugs which was found inside the flat.
Before sentencing you, I took into account the facts of the case, the mitigation put forward by your counsel, and the sentencing authorities. It is well established that trafficking in a dangerous drug is of course a very serious offence. In the Court of Appeal case of Herry Jane Yusuph [2021] 1 HKLRD 290, Macrae VP reaffirmed that for this kind of offence, personal circumstances were far less importance than the sentencing principles of denunciation, deterrence and punishment.
Therefore in sentencing you, I shall follow the six-step approach as enunciated by the Court of Appeal in that case. According to that case, the first step is to assess the gravity of the offence.
Now, in the present case, you have involved in four types of different drugs with individual sentencing tariffs. There is 26.72 grammes of heroin, 10.02 grammes of herbal cannabis, 9.72 grammes of ‘Ice’, and also 16.46 grammes of cocaine.
Heroin
The guideline for sentencing trafficking in heroin cases was laid down in the case of R v Lau Tak Ming [1990] 2 HKLR 370 which was later modified in another case HKSAR V Abdallah [2009] 2 HKLRD 437.
According to the court, for the quantity between 10 and 50 grammes, the starting point is 5 to 8 years. Therefore, for 26.72 grammes of heroin involved in this case, the starting point should be 6 years and 3 months.
Herbal cannabis
In Tuen Shui Ming and Another [1995] 2 HKCLR 129, for trafficking under 2,000 grammes of cannabis resin, the starting point is 16 months’ imprisonment. The Court of Appeal made it clear that the starting point must be adjusted for herbal cannabis as cannabis resin is normally four times higher in concentration.
Your counsel, Mr Lau, therefore submitted that for 10.02 grammes of herbal cannabis, the starting point should be 4 months only.
‘Ice’
The guideline for sentencing trafficking in ‘Ice’ is laid down in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 by the Court of Appeal. For the quantity of up to 10 grammes, the starting point is between 3 to 7 years. Therefore, for the 9.72 grammes of ‘Ice’ in this case, the starting point should therefore be 6 years and 11 months.
Cocaine
The guideline for sentencing trafficking in cocaine is aligned to trafficking in heroin which is set out in the case of Lau Tak Ming as mentioned. For the quantity between 10 grammes and 50 grammes, the starting point is also therefore 5 to 8 years. For the quantity of 16.46 grammes of cocaine in this case, the starting point should be 5 years and 6 months.
Overall starting point
Because there are four different types of drugs, in determining the overall starting point, I have reminded myself of the sentencing principle of trafficking in a cocktail of drugs.
There are altogether three means of checking the appropriateness of the overall starting point in the case of trafficking involving different types of dangerous drugs (see the case of HKSAR v Chan Yuk Leong, CACC 318/2013).
Naturally, if I were to just sentence the defendant on the individual approach by simply adding the notional starting point for each kind of drugs, it will produce a sentence which no doubt will be too excessive and does not properly reflect the justice of the case.
In order to achieve a more reasonable and realistic sentence, I shall adopt the combined approach which involves an upward adjustment from the starting point of a base drug. In the present case, among all the drugs, cannabis is obviously the least serious drug, while heroin and cocaine may be similar in terms of their potency and ‘Ice’ is perhaps even more serious in terms of its potency.
However, in this case in terms of quantity, ‘Ice’ represents only about 15% of the drugs whilst heroin and cocaine together represents nearly 70% of the total quantity of the dangerous drugs found in this case. Also their sentencing tariff are the same. So in the end, I will therefore use these two types of drug, that is heroin and cocaine, as the basis of calculation in order to calculate the overall starting point.
According to the sentencing guideline for both heroin and cocaine, for the combined quantity of 43.16 grammes (i.e. 16.46 grammes of cocaine plus 26.72 grammes of heroin), the starting point is 7 years and 6 months’ imprisonment according to mathematical calculation.
In order to determine the upward adjustment for the remaining 9.72 grammes of ‘Ice’ and 10.02 grammes of herbal cannabis, firstly, I agree with your counsel, Mr Lau’s submission to me that because of the relatively low sentence involved in the herbal cannabis in this case, there is no point to convert the sentence into an equivalent quantity in heroin or cocaine, and so it becomes negligible as far as the combined approach is concerned.
In other words, I shall disregard the presence of the herbal cannabis when I consider the overall starting point. I then examine the overall starting point by checking it against all the three tests.
Now, both counsel had done and agreed on the calculations in relation to the absurdity and the ratio tests. As a result, the absurdity test is 9 years and 10 months’ imprisonment. The ratio test produced, however, a result of 8 years and 4 months’ imprisonment.
As for the conversion test result, both counsels now agreed that, if the weight of heroin and cocaine are added together and all the drugs are converted into heroin, the test results should be 8 years and 9 months. If the weight of heroin and cocaine are added together and all the drugs are converted to ‘Ice’, the test result is 8 years and 2 months. If the weight of ‘Ice’ and the weight of cocaine are individually converted into heroin, the test result is 8 years and 9 months. And finally, if the weight of heroin and the weight of cocaine are individually converted into ‘Ice’, the test result is 7 years and 11 months.
Having applied the three cross-check tests as mentioned, I consider that the result in the ratio test is perhaps a bit too low by comparison. The notional starting point of 8 years and 9 months under the conversion test which uses the heroin and cocaine as the base drugs will be more realistic and appropriate.
If I use ‘Ice’ as the base drug and convert the heroin and cocaine into ‘Ice’, there will only be a 12 months enhancement which is too low and unrealistic, especially when the tariff for the quantity of ‘Ice’ alone in this case is already 6 years and 11 months.
The second step is to assess the defendant’s role and culpability based upon the evidence. It was held in Herry Jane Yusuph (at paragraph 59):
“The guideline for trafficking in dangerous drugs are based upon the courier or storekeeper; that is, the person who is delivering, distributing or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”
Consequently, it would not be possible to properly apply the guidelines until the court takes a view of the role and culpability of the defendant.
The third step is to identify where in the relevant band the defendant comes, bearing in mind it might be necessary to go outside that band whether above or below given the circumstances of the offences and the role of the defendant.
The assessment made in the second step is relevant in determining where within the band or outside the band the defendant comes. The Court of Appeal reaffirmed that the bands were for the least culpable of drug traffickers and storekeepers fall into this category.
The facts of this case reveal that the defendant was intercepted by the police when he returned and opened the gate of the flat, and they found the dangerous drugs inside the flat. Under caution, defendant also told the police that he had bought the drugs from a male at a public playground for $10,000.
Without further evidence based on the above, I will sentence the defendant in accordance with the guidelines as if the defendant is a courier or a storekeeper.
Now, the fourth step requires me to consider whether there are aggravating factors which may require me to enhance the starting point. As already noted, the trafficking in this case involves three types of dangerous drugs. I should say four types actually, even though I said I disregard the presence of the herbal cannabis, but in fact, there were four different types.
The fact that the seizure of two or more types of dangerous drugs at the same time, even though separately packed and not in a prepared mixture, may lead to two possible aggravating features. One aggravating feature is the ability of the trafficker to cater for a wider market than a trafficker in only one kind of drugs. And more importantly is the effect of the uses of the combination of the dangerous drugs.
Now, even disregarding the herbal cannabis altogether, just because of the presence of the different quantities of heroin, cocaine and ‘Ice’ in this case, I will enhance the overall starting point by 3 months. Therefore, from 8 years 9 months to 9 years’ imprisonment.
Despite the numerous previous criminal records of the defendant, in this case, this is still by far only the second time he committed the trafficking in dangerous drugs offence and his previous trafficking conviction was already 17 years ago, according to the record, in 2007 for which he was only sentenced to 16 months’ imprisonment in the Magistrates’ Court. So this time I will not enhance his sentence on account of his previous criminal records despite his appalling records.
Now, on the fifth step, I am required to have regard to all mitigating factors. As the Court of Appeal made clear in Herry Jane Yusuph case, in cases of trafficking in a dangerous drug, personal circumstances will count for little unless they are exceptional. There are no exceptional personal circumstances that I can find in the defendant’s case.
In mitigation, Mr Lau on behalf of the defendant, emphasised the defendant’s timely plea in this case for which he is entitled to the usual one-third discount in sentence. Apart from that, he also relies on the assertion of the self-consumption by the defendant and submitted that significant portion of the dangerous drugs seized in this case is for his own self-consumption.
I must say that I will not accept any bare assertion of this claim by counsel from the Bar table. If a defendant is serious about this claim, the defence must consider calling the defendant to go to the witness-box and give evidence to that effect. As such, in this case, Mr Lau could only point to the defendant’s past criminal record where possession of dangerous drugs and also his self-claimed level of salary and his explanation under caution to support the defendant himself was a drug abuser.
In determining the issue of self-consumption, the sentencing court must find that a significant portion of the drugs would have to be consumed by the defendant. According to the authorities, if he does not meet this threshold, he will not be entitled to a discount as high as 10% to 25% as suggested in the case of Chow Chun Sang CACC 262/2011 in the Court of Appeal.
However, in another case HKSAR v Liu Ming Sze, [2017] 1 HKLRD 297, the Court of Appeal also pointed out that the sentencing court in any event still has a discretion to discount the sentence by way of small portion to reflect the element of self-consumption.
On the evidence now before me, I can only accept that a certain amount of drugs, though not significant, would be intended for the defendant’s own consumption. In the end, I exercise my discretion to give the defendant a discount of 3 months for self-consumption. With such a discount, the starting point of the trafficking in dangerous drugs charge is back to 8 years and 9 months’ imprisonment.
Now, the real mitigating factor in this case in the end is therefore the defendant’s plea of guilty. I will give the full one-third discount to the defendant. The starting point after reduction is reduced to a term of 5 years and 10 months’ imprisonment.
The sixth and final step is to stand back and look at the overall sentence. In my judgment, the sentence of 5 years and 10 months’ imprisonment is fair, just and balanced in all the circumstances of the case and the offender, and there is no other reason existed to further adjust the sentence I seek to impose.
Order
Based on the above reasons, the final sentence that I would impose on the defendant is therefore 5 years and 10 months’ imprisonment.