COURT: The defendant pleaded guilty in the Magistrates’ Court to two counts of trafficking in a dangerous drug on 30 November 2023 and was committed to the Court of First Instance for sentence. Today, she confirms her pleas and admission of the Summary of Facts.
The Facts
On 21 March 2022, at around 7 pm, police intercepted the defendant leaving 75 Prince Edward Road West, Kowloon. She was carrying a paper bag and the police searched it. In it, they found the drugs of the 1st count, namely, 188.55 grammes of a crystalline solid containing 185.49 grammes of methamphetamine hydrochloride, ‘Ice’.
She was arrested and cautioned. She admitted under caution that she was delivering the ‘Ice’ to customers to pay off the debt she owed others. She would receive $5,000 for the delivery. She had keys on her person for a Room D on the first floor of the same building. The police took her upstairs and entered that room.
In that room, they found the drugs of Count 2, 4,073.13 grammes of a crystalline solid containing 3,909.92 grammes of methamphetamine hydrochloride, ‘Ice’, and 1,768.88 grammes of a mixture containing 1,416.44 grammes of heroin hydrochloride. The police also found plastic bags of various sizes, digital scales and other paraphernalia used in drug trafficking and packaging.
The defendant was arrested and cautioned again. She admitted that she was at what she called “the warehouse” to repack drugs. She would receive telephone calls from people who wanted delivery of drugs and she would pack and deliver as requested. She would receive $5,000 for every one kilogramme of ‘Ice’ delivered. She did not know how much the drugs were sold for as she did not collect money from anybody. She does admit now that the total estimated street value of all the drugs was approximately $4,106,207.
Mitigation
I have received from Mr Leung, representing the defendant, written mitigation in advance. She is now 51 years old and prior to her arrest was working as a part-time cleaner. She is divorced and has two adult daughters. She is estranged from her daughters. She is, however, devoted to a dog which led to her committing the offences in this case.
Her dog required an operation, surgery, costing about $10,000 and she had no option but to borrow it. She borrowed money from dubious people and that debt, which she obviously did not repay in a timely manner, turned into a debt of over $200,000. She was then forced to commit these offences to repay her debt. She is not a woman with a clear record, but all her five previous convictions relate to gambling for which she was fined. I have seen a letter from the defendant explaining how she got into this predicament and debt.
The defendant’s best mitigation is her pleas of guilty at the earliest opportunity.
Sentencing
It is well established that trafficking in dangerous drugs is a very serious offence. I have considered the approach to sentencing those that traffic in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and the very recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.
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 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, or in this case, drugs, found. Here, there are two types of dangerous drugs, ‘Ice’ and heroin.
I will add the drugs of both charges together as both were committed on the same day and closely connected. I will consider a global starting point.
The tariff for the drug ‘Ice’ is set out in the authority of HKSAR v Tam Yi Chun [2014] 2 HKLRD 691. However, where the quantity exceeds 600 grammes, the guidelines have been further elaborated in HKSAR v Abdallah [2009] 2 HKLRD 437. In that case, it was held that those that traffic between 4,000 to 15,000 grammes will be sentenced between 26 to 30 years’ imprisonment after trial.
Mathematically speaking, 4,095.41 grammes of ‘Ice’, the total of ‘Ice’ in Charges 1 and 2, would attract a starting point of 26 years’ imprisonment.
The tariff for the drug heroin is set out in the authority of R v Lau Tak Ming and Others [1990] 2 HKLR 370, but again the authority of Abdallah applies here because the quantity of heroin found exceeds that considered by the Court of Appeal in 1990. Where the quantity is between 1,200 and 4,000 grammes, a starting point of 23 to 26 years’ imprisonment after trial is appropriate.
Mathematically speaking, 1,416.44 grammes of heroin hydrochloride will attract a starting point of 23 years and 3 months’ imprisonment.
As there are two types of drugs involved here and they are similar in potency, a combined approach in sentencing is often preferred as well as fairer to the defendant.
As the drugs are deemed to be so similar in potency, I will add the amount of heroin and ‘Ice’ together. This comes to a total of 5,511.85 grammes, which would, according to the guidelines, attract a mathematical starting point of 26 years and 7 months.
If I were to crosscheck that starting point against the absurdity test, the ratio test and the conversion test, all indicate 26 years and 7 months’ starting point is accurate and fair.
The second step of the six-step is to assess the defendant’s role and culpability based upon the evidence. I accept she was acting as a storekeeper and a courier upon her own admissions. However, she also admitted packaging drugs. Mr Leung has urged me to consider only a slight enhancement if I find her role to be more serious than or above that of a mere storekeeper and courier.
Now, I accept she admitted repacking drugs delivered to the premises as directed. I have taken into account that some drugs were found containing approximately 50 grammes or 218 grammes or 1,000 grammes of ‘Ice’. The heroin was found in bags containing about 28 grammes of a mixture. All the rest was in four blocks containing a total of 1,400 grammes. There were bags of different weight containing either ‘Ice’ or heroin.
She may have had a role in repacking, but this was not a case where she repacked into much smaller resealable plastic bags for individual consumption and therefore wider distribution by her. It would appear someone else further down the chain did that.
Therefore, I intend to treat her as a storekeeper and a courier in this case. That means a starting point is to be determined by the relevant tariffs and the quantity of dangerous drugs involved.
In light of her role and considering the third step of where within the guidelines the defendant should lie, I will take a starting point of 26 years and 7 months.
The fourth and fifth steps require me to consider whether there are any aggravating factors or any exceptional mitigating factors. Other than the defendant’s pleas at the earliest opportunity, there are no other mitigating or aggravating factors to consider.
The defendant will benefit from a one-third discount from that starting point of 26 years and 7 months’ imprisonment. Once that discount is applied, the starting point is reduced to 17 years and 8 months’ imprisonment.
The last step is to stand back and look at the overall sentence in order to ensure that it is fair, just and balanced in all the circumstances of not only the offence but also the defendant. In this case, it is a very significant term of imprisonment but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced or unjust.
Therefore, for Charge 1, the defendant is sentenced to 17 years and 8 months’ imprisonment. For Charge 2, the defendant is sentenced to 17 years and 8 months’ imprisonment. I order that the sentences for both counts to be served concurrently.
Accordingly, the defendant will serve a total of 17 years and 8 months’ imprisonment.