COURT: The defendant pleaded guilty on 31 October 2024 in the magistracy to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He admitted the Summary of Facts prepared by the prosecution. He was committed to this court for sentence.
The facts that the defendant has admitted can be summarised as follows for the present purpose.
On the night of 12 April 2022, the defendant was intercepted by police officers in the street near his home. He was escorted by the officers to his home, where he lived with his family members, in which the officers found the dangerous drugs in this case, namely 43.69 grammes of cocaine, 476 grammes of methamphetamine hydrochloride and 21.8 grammes of methamphetamine. These figures represent the weight of the narcotic contents. The dangerous drugs were packed into many plastic bags which were either placed inside a cash box, which had a password lock, or a wardrobe inside the defendant’s bedroom. Paraphernalia including three digital scales, unused small transparent resealable plastic bags and gloves were found. Cash of $9,800 and a mobile phone were also found.
Upon arrest for trafficking in dangerous drugs and under caution, the defendant admitted that the drugs were ‘coke’ and ‘Ice’, and he received $5,000 for trafficking in them. In his video-recorded interview, he admitted under caution his knowledge of the nature and his ownership of the dangerous drugs. He repeated that he had received $5,000 as reward. He claimed that part of the aforementioned $9,800 were proceeds from selling dangerous drugs and the rest was loan from his parents. He refused to disclose his accomplices. He admitted that he would pack the drugs inside the toilet in mid-night by using the paraphernalia found. He admitted using the mobile phone for his drug-trafficking activities and he would regularly erase his call records. Finally, he explained that he committed the offence to earn money to repay his debt.
There is no information of the estimated street value of the dangerous drugs in this case.
Background and Mitigation
Based on the defendant’s antecedent statement, his criminal records, the written submissions prepared by Ms Yip of counsel, who previously represented the defendant, which the defendant adopted, and the mitigation letters written by the defendant, his parents, his fiancée, his cousin and the Assistant Project Manager of the defendant’s previous employer, the defendant’s background and mitigation are as follows.
The defendant was 29 years old at the time of offence. He is now 32 years old. He is educated up to Form 5 level. He made acquaintance with dubious characters during his school years and picked up the drug habit. He has triad background. After meeting his former wife, he turned over a new leaf and managed to remain employed. They got married in 2018 but was going through a divorce at the time of offence, which was finalised in October 2022. Their daughter, who is 7 years old now, lives with his ex-wife but the defendant maintained contact and financial support for her when he had a stable income from employment.
The defendant maintains a harmonious relationship with his parents, elder brother and daughter. He has one previous conviction of trafficking in dangerous drugs, sentenced in 2019 to 3 years’ imprisonment. He was discharged from prison after serving the sentence on 3 March 2021. Afterwards, he managed to secure a job as a bartender in a hotel, earning about $10,000 per month. However, he has become unemployed since mid-2021 because of the pandemic.
He was convicted of possession of dangerous drugs and sentenced to 8 months’ imprisonment in December 2022. Whilst on bail for this offence, he committed the present offence. He committed the present offence for the monetary reward of $5,000 as he wanted to contribute towards his daughter’s living expenses. He has already received the reward. He was instructed to repack the dangerous drugs and wait for delivery instructions while keeping them at his residence in the interim. He was given a mobile phone to communicate with his instructor. He explained that he refused to disclose the identity of his accomplice, who knew his home address, out of concerns for the safety of his family members.
The mitigation letters submitted by the defendant disclosed that the defendant is a decent person and is fully remorseful for his wrongdoing. The defendant promised that he would turn over a new leaf and be a good father, husband and son upon release from prison. His former employer has expressed its willingness to re-employ him.
As for sentence, the court is urged to adopt the combined approach, using methamphetamine as the base drug, and adopt a starting point of no more than 17 years 2 months of imprisonment. It is submitted that the defendant was only a courier and/or storekeeper in the matter. It is accepted that an enhancement of 6 months to the starting point is appropriate in light of the defendant’s previous conviction records.
As for the fact that the defendant committed the present offence whilst on bail for another offence, the defendant pleaded for mercy and leniency. It is urged that an enhancement of 6 to 9 months only should the court be minded to increase the sentence due to both aggravating factors.
Sentence
I now consider the six steps as stipulated in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, bearing in mind also the Court of Appeal’s guidance in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
Step 1 is to identify the relevant guideline band applicable to the quantity of narcotics concerned.
The Court of Appeal has laid down new sentencing guidelines for trafficking in heroin, cocaine and methamphetamine in the case of HKSAR v Huang Ruifang [2025] HKCA 234 on 5 March 2025. For larger quantities of drugs, the applicable tariffs have been adjusted downwards. Although the present offences were committed before the new sentencing guidelines had been laid down, article 12(1) of the Hong Kong Bill of Rights stipulates that:
“If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.”
There are 43.69 grammes of cocaine in the present case. The applicable sentencing tariff remains as 5 to 8 years of imprisonment for trafficking in between 10 and 50 grammes of cocaine. There is a total of 497.8 grammes of methamphetamine in this case. The applicable new sentencing tariff is 15 to 18 years of imprisonment for trafficking in between 300 and 600 grammes of ‘Ice’.
I agree that this is a case where the combined approach should be adopted, using methamphetamine as the base drug. After conducting the absurdity, conversion and ratio tests for cross-checking, I adopt a starting point for sentence of 17 years and 2 months’ imprisonment.
Steps 2 and 3 are to assess the role of the defendant and to decide where within the guidelines the defendant should lie. On his own admission, he was more than a courier or a storekeeper. He was both a courier and a storekeeper and in addition, the person who used tools to repack the drugs for later distribution. It is noted that most of the cocaine seized in the case had been packed into plastic bags with roughly the same quantity of cocaine inside. The defendant admitted knowledge of the nature of the two drugs and had received $5,000 as reward. In the circumstances, I enhance the starting point by 4 months to 17 years and 6 months.
Step 4 deals with the aggravating factors. The defendant has two previous convictions: one trafficking in dangerous drugs sentenced in 2019 to 3 years’ imprisonment. Not long after his release from prison for that conviction, he committed the second offence which was possession of dangerous drugs and was sentenced to 8 months’ imprisonment in December 2022. Whilst on bail for this offence, he committed the present offence.
Whilst I will not treat his conviction for possession of dangerous drugs as a similar offence based on HKSAR v Wan Wai Lun [2018] HKCA 30, the fact remains that he has a previous conviction of trafficking in dangerous drugs only a few years ago and when he was already a 27-year-old adult. This previous conviction and his commission of the present offence whilst on bail are serious aggravating factors for they demonstrate his disregard for the law and the lack of deterrent effect of the previous sentences on him. I enhance the starting point by 4 months for the first aggravating factor and 6 months for the second aggravating factor, thus bringing the starting point to one of 18 years and 4 months.
There is a third aggravating factor which is that there are more than one type of dangerous drugs in this case. Trafficking in a cocktail of drugs is an aggravating factor. For this, I enhance the starting point by 5 months to 18 years and 9 months.
Step 5 considers the mitigating factors. I do not regard the defendant’s personal or family circumstances as any mitigating factor. As the Court of Appeal emphasised in HKSAR v Abdallah [2009] 2 HKLRD 437, at paragraph 32:
“As for mitigation, the grievousness of the offence - a description that is born of the recognition of the dreadful misery caused to victims and their families and the serious harm to society generally - dictates that meaningful mitigation, apart from the plea of guilty, is rarely available. The message must consistently be delivered, even to the vulnerable such as the relatively young and those who say they need money whether for themselves or for the benefit of family members who are ill, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade.”
The only mitigating factor open to the defendant is his guilty plea entered at the earliest opportunity. For that, he is entitled to a full one-third discount. That brings down the sentence to 12 years and 6 months.
Finally, I consider this sentence fair, just and balanced in all the circumstances of the offence and the defendant. Accordingly, the defendant is sentenced to 12 years 6 months’ imprisonment.