COURT: There are two defendants in this case. They are jointly charged with one count of conspiracy to traffic in a dangerous drug, Count 1.
D1 was further charged alone with one count of trafficking in a dangerous drugs, Count 2; one count of offering to trafficking in dangerous drug, Count 3; and one count of possession of a dangerous drug, Count 7.
D2 was further charged with alone with one count of offering to traffic in a dangerous drug, Count 4; and two counts of trafficking in a dangerous drug, Count 5 and Count 6.
D1 pleaded guilty to Counts 2, 3 and 7.
D2 pleaded guilty to Counts 4, 5 and 6.
After the two defendants were convicted of these counts, Count 1, with which they were jointly charged, was left on the court file.
In sentencing I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug involved, background of the defendants and mitigation put forward on their behalf.
The case arose from a controlled buy operation. The facts in relation to each count may be summarised as follows. D1:
Count 2. On 18 September 2012, the officer dialled the telephone number which the police suspected was used for trafficking activities. D1 answered the phone and offered to sell to the officer 1.75 grammes of “ice” for $1,000. When they later met, D1 handed to the officer a packet containing 1.46 grammes of a crystalline solid containing 1.41 grammes methamphetamine hydrochloride. The officer paid him $1,000.
Count 3. On 2 October 2012, the officer called D1 who offered to sell him 14 grammes of “ice” for $7,000. Soon afterwards, D1 told him he could not supply the drug because the supplier could not be reached.
D1 was arrested on 20 November 2012. Under caution he said since D2 was in jail the business was handed over to him. D2 gave him a mobile phone for him to receive calls from people who wanted buy drugs. When a customer called for purchase of “ice” he would call his supplier. Usually he would buy 7 grammes of “ice” as $3,000.
When D2 was released he had already passed the business back to him.
Count 7. After the arrest of D1, the police searched his home and found three plastic bags containing traces of “ice” and some empty resealable bags.
D2:
Count 4. On 14 November when the officer dialled the number which was displayed when D1 called him before, D2 answered the phone. D2 offered to sell him 14 grammes of “ice” for $7,000. They, however, did not meet as scheduled. The officer was unable to contact D2 on the phone at the agreed time.
Count 5. A few days later the officer called again and D2 offered to sell him 14 grammes of “ice” at $7,000. When they met, D2 handed him a packet containing 13.5 grammes of a crystalline solid containing 13.16 grammes of “ice”. D2 was then arrested.
Count 6. On the following day D2’s home was searched. One packet containing 8.02 grammes of a crystalline solid, containing 7.82 grammes of “ice” was found. D2 admitted that he intended to sell the drugs to others.
I was told that D1 is 23 years of age. He is a first time offender. He received secondary education and had worked as a lorry porter and a waiter. He lived with his parents and sisters. He was addicted to ketamine.
As regards D2, he is 20 years of age. He received education up to form 3 and had worked as a lorry porter. He also lived with his parents and sister. He was addicted to “ice”. He was, in 2012, convicted of the offence of possession of dangerous drugs and a probation order was imposed. He, however, breached the order and was eventually sent to DATC for treatment.
Learned counsel representing D1, Ms Remedios, produced to the court letters from his family members and others who speak of his good nature and plead for leniency. She also submitted that the court should not give the quantity of the drug offered undue weight, as there was no real harm caused to the community. She further submitted that the difference in culpability between a person who offers to sell 1 gramme of dangerous drug and a person who offers to sell 1 kilogramme is much smaller than the difference between a person who actually sold 1 gramme and a person who sold 1 kilogramme.
Learned counsel representing D2, Mr So, asked the court to take into account that D2 was only at the age of 21 years when he committed the offence. He also urged the court to accept that the evidence in support of the most serious offence, Count 4, is weak as it comprises shaky identification evidence, but still the defendant pleaded guilty. A letter written by the defendant himself was produced in which he expressed his remorse.
The Court of Appeal held in AG v Ching Kwok Hung [1991] 2 HKLR 125 that in a case of “ice” where the narcotic content was less than 10 grammes, the sentence should range from 3 to 7 years and if the narcotic content is between 10 to 70 grammes the sentence should range from 7 years to 10 years’ imprisonment.
I note the Court of Appeal held in cases such as HKSAR v Yeung Kam Chen CACC 247/2004 and HKSAR v Chan Kwok Kuen CACC 15/2012 that for trafficking of smaller amounts of “ice”, the sentencing judge is not obliged to start with 3 years and it would be within the discretion of the sentencing judge to adopt a lower starting point.
For the trafficking counts I see no reason not to follow the tariff.
For the offering offence there is no tariff. My attention was shown to two cases by Ms Remedios.
In the case of HKSAR v Shum Koon Lam CACC 73/2001, the appellant was convicted after trial. For the count involving an offer to supply 4 kilogrammes of “ice”, a sentence of 5 years’ imprisonment was imposed. For another count of offer where no specific quantity of drug was mentioned, an imprisonment term of 5 years was also imposed. These sentences were ordered to run concurrently with other sentences, including one for doing an act preparatory to manufacturing a dangerous drug; making a total sentence of 14 years’ imprisonment. There was an appeal against sentence, but only against the 14 years’ imprisonment term imposed on the count of doing an act preparatory to manufacturing a dangerous drug. The appeal was dismissed. It involved no discussion on the sentences imposed on the offering count. The case is of limited assistance.
In HKSAR v Wiji Lestari CACC 332/2013, the applicant was convicted upon her own plea of two charges of trafficking in dangerous drugs and one charge of offering to traffic in dangerous drug. For the offering charge, the quantity of “ice” the applicant had offered was not specified. 4 years was adopted as a starting point by the sentencing judge. Leave of appeal was granted, but it seems that the appeal has not yet been heard. It also appears that the concern of the court was more on whether the sentence was appropriate in the light of the particular facts of the case.
Before this hearing, counsel had been given time to look for relevant material on sentencing on this offence, but the effort is to no avail, except that the last mentioned case was brought to my attention. Mr So had filed some cases, but it turns out, as he accepted, that none of them is helpful.
The offence of offering to traffic in a dangerous drug carries the same maximum penalty as the offence of trafficking in a dangerous drug; it is life imprisonment and a fine of $5 million.
I can see that there can be much variation in factual circumstances in the case of offering to traffic. To one extreme it can be the case where the offeror did not really have the intention to traffic, despite an offer was made. To another extreme it can be the case where he, after having made the offer, did most steps towards completion of the delivery; in other words, a case almost amount to attempting to traffic.
In the light of the possible factual variation, it is my view that there are cases in which strict compliance with the tariff for the offence of trafficking in a dangerous drug may not be necessary or appropriate.
Whether the tariff is to be followed or whether a departure is justified and, if so, to what extent, is a matter to be decided having regard to the circumstances of the particular case. However, even if a departure is justified, in my judgment, in most cases the quantity the offender offered to traffic will still be an important factor to be taken into account in deciding the proper sentence. Strict arithmetic progression must, of course, be avoided.
I have considered whether the fact that no drug has been delivered will have bearing on sentence as it was submitted that no real harm will be caused. I accept that this matter is relevant, but at the same time I think its significance may vary according to the circumstances of the case. I note the tariff in trafficking has consistently been applied in cases for controlled buy where the drug would not have caused any real harm physically to the community. I mention physical harm since it cannot be ignored that the conduct still creates harm to the community by the advancement of the culture and business of trafficking in dangerous drugs. Moreover, I cannot emphasise more that there is still a great need for deterrence. The social harm of such activity can readily be appreciated.
In all the circumstances, I adopt the following starting points. D1:
Count 2, 2½ years.
Count 3, 5 years. I take this starting point having regard to what I have just said and the following factors. There was no actual passing of dangerous drug, the transaction was cancelled before the agreed delivery date and, indeed, soon after the offer had been made. According to D1, he did not even have the dangerous drug to deliver to the officer and there is no evidence to rebut this assertion. However, he did promise to provide drugs to the officer and there is nothing to suggest that he had not made attempts to purchase a dangerous drug for the promised sell. His acts gave impetus to the dangerous drug trade.
Trafficking in 14 grammes of “ice” attracts a starting point of 7 years. The tariff is applied in accordance with the narcotic contents, not the gross weight of the mixture. In most cases the dangerous drugs supplied came in the form of mixture. It can reasonably be expected that it would have been the same in this case if delivery did really take place. Bearing this in mind, I notice that the dangerous drug which each defendant respectively was able to obtain was of high purity.
Count 7, the starting point is 9 months.
D2:
Count 4, 5½ years. Despite there was also no actual passing of dangerous drug, what happened was just that the defendant could not be contacted for the delivery. He did promise to provide drugs to the officer. There was no explanation as to why the transaction did not take place. His position was not the same as D1. His admission shows that he resumed his trade after his discharge from DATC. I am sure that it was the intention of D2 to sell this quantity of “ice” to this officer. There is nothing to indicate that he did not possess a quantity of dangerous drug he offered to sell. In any case, his acts gave impetus to the dangerous drugs trade.
Count 5, 7 years is the starting point.
Count 6, 5½ years.
The two defendants pleaded guilty and for this reason both are entitled to a one-third discount. In my judgment, this is the extent of discount they are entitled to in this case.
So for D1 the following sentences are imposed:
Count 2, 20 months.
Count 3, 40 months.
Count 7, 6 months.
There was one actual selling of dangerous drug and one offer to sell. Although there was no actual delivery in the offer count, there were two separate transactions. In cases of actual trafficking, depending on the circumstances, it is often appropriate to have regard to the overall quantity of the narcotic content and the aggravating feature that there were two separate transactions in deciding the ultimate sentence. In my judgment, it is appropriate to apply the same line of thought in the present case.
When I refer to the overall quantity, I bear in mind that there was no actual delivery in the offer count and the observation I mentioned earlier, including that on narcotic content.
The aggravating feature that there were two occasions attracts an enhancement of 6 months. In my judgment, an ultimate starting point of 7 years is appropriate and sufficient in the circumstances of the case.
Giving a one-third discount, which D1 is entitled to, the ultimate sentence is 4 years and 8 months. To give effect to this, I order the sentences of Count 2 and Count 7 to run concurrently and 36 months of Count 3 to run consecutively to the accumulative sentence of Count 2 and Count 7.
For D2:
Count 4, 44 months.
Count 5, 4 years and 8 months.
Count 6, 3 years and 8 months.
Mr So urged me to accept that Count 5 was indeed a follow-up of the offer in Count 4, in other words the offences in the two counts were part and parcel of the same transaction. The prosecution expressly refused to accept this assertion. The summary of facts which D2 admitted is not only silent on this point, it bears little indication that what Mr So asserted was the case.
From the account provided in the summary of facts, I found that it was two separate transactions. The two transactions were two days apart. Although the officer used the same name, “Ah Mo,” when he contacted the other side, from what he described in his witness statements, there is nothing to suggest that he bothered who was the supplier on the other side. His experience was that different people would be on the other side, even when the same telephone number was engaged. There is no indication that there was conversation about a previous transaction. From what the officer said, it was the party on the other side who suggested on the quantity and the price.
In all the circumstances, bearing in mind that there is no evidence either from the material already available or at the hearing to prove or indicate that at least in the mind of D2 it was the follow-up of the previous offer, I find that Count 4 and Count 5 represent two separate incidents.
In deciding the ultimate sentence, I adopt the same principle applied on D1. In my judgment, the aggravating feature attracts an enhancement of 12 months. In the circumstances, having regard to totality, I am of the view that a total ultimate starting point of 8½years is appropriate.
Giving one-third discount, which D2 is entitled to, the ultimate sentence is 5 years and 8 months. To give effect to this I order the sentences of Count 5 and Count 6 to run concurrently, but 1 year of Count 4 to run consecutively to the aggregate sentence of these two counts.
Defendants, please stand up.
D1, I sentence you to a total sentence of 4 years and 8 months’ imprisonment for the three counts you have pleaded guilty for the reasons I have mentioned.
D2, I sentence you to a total sentence of 5 years and 8 months’ imprisonment for the three counts you have pleaded guilty to.