COURT: On 20 May 2019, police officers were conducting an operation at Lung Hong House, Lower Wong Tai Sin Estate, in Wong Tai Sin. At about 1.50 am, the police saw To Hin-ching (hereafter “the accused”) in the lift lobby of the ground floor of this building. He entered the lift and came out at the 10th Floor. At that point, he was intercepted.
The accused was found by police to have keys to a room on that floor. He said he lived there with his parents.
The police gained entry and found under one of the beds inside the room a plastic box containing a red recycle bag containing two plastic bags of suspected dangerous drugs. They were seized and, upon analysis, it was found that the substance, which weighed 642 grammes, was not a dangerous drug.
The accused was arrested for trafficking in a dangerous drug. He was cautioned and, in response to the caution, he said, “It has nothing to do with my father and mother.”
A further search of the room revealed an electronic scale and a resealable plastic bag containing 17 transparent resealable plastic bags. A small amount of money and a mobile phone were also seized.
The accused submitted to a video recorded interview and said to the police, under caution:
(1) the substance that the police had found was ‘Ice’, which he had bought for his own consumption and for sharing with friends;
(2) He bought the substance about half a month ago but could not remember the price he paid although he did say that he borrowed the money to pay for what he believed were the drugs from a friend;
(3) told the police that he used what he believed were drugs and shared them with his friends although he never charged money to his friends for the drugs that he believed he was sharing;
(4) he told the police the only drug he consumed was ‘Ice’;
(5) he said he would not take ‘Ice’ every day but on the occasions he did take ‘Ice’ he would use it sometimes as many as five to ten times a day;
(6) he was not able to say how much he spent on drugs. He said that he was working as a kitchen worker on a freelance basis and earned about $12,000 per month.
The estimated retail value of 642 grammes of methamphetamine hydrochloride in May 2019 was $357,000.
The accused is convicted upon the basis that at the place in question and at the time in question he did an act preparatory to trafficking in a substance which he believed to be a dangerous drug.
Procedural background
The accused was brought before a magistrate on 21 May 2019. On 7 September 2020, the accused was committed for sentencing in this court following a plea of guilty and the admission of the facts which I have summarised.
Background and mitigation
The accused was born in Hong Kong. He is 25 years old. He was educated up to Form 4 level and lives with his parents. He is a married man and has a daughter but he and his wife were, at the time of arrest, separated. He said he was addicted to ‘Ice’.
He had told me through his counsel, Ms Cindy Lee, that he has handled his divorce very badly. That said, his family attended to show support despite the pandemic and I am grateful for their attendance here today.
Ms Lee told me he is remorseful and he intends to use the custody which is inevitable in this case to improve himself in prison, and that is to his credit.
He has worked as a cook and a lifeguard. Between April 2018 and February 2019, he was unemployed and he worked at kitchen jobs after that at about $12,000 a month.
He has previous convictions but they occurred about 10 or 11 years ago and they appear to be relatively minor and committed when the accused was very young. Obviously, there is no basis to take those into account in aggravation of his sentence.
Sentencing principles
Trafficking in a substance believed to be a dangerous drug
Had the substance found in the premises of the accused actually been ‘Ice’, the accused would have been sentenced upon the basis of the guidelines, which suggest a sentence for 600 to 1,200 grammes would be between 20 and 23 years. If the substance had in fact been ‘Ice’, the starting point in fixing sentence for this accused would have been a sentence of the order of 20 years.
It may have been appropriate to look at the starting point of 20 years because the accused was, in essence, a storeman. That might not have been a complete picture of his culpability had the substance been ‘Ice’, because he was prepared to traffic in the substance.
Even though the substance is not in fact a dangerous drug, the community plainly views the conduct as of potential seriousness because the maximum penalty for this offence is, on indictment, life imprisonment and a fine of $5 million.
The authorities that have considered the appropriate sentencing for the doing of an act preparatory to trafficking in a substance believed to be a dangerous drug recognised the conduct is of some seriousness. In Attorney General v Ye Wing Leung, CAAR 2/1997, the accused had a substance amounting to 1,060 grammes which he believed to be a dangerous drug. In fact, he believed the drug to be heroin. It is noteworthy that the substance that he in fact had was a combination of chemicals which were capable of being used to adulterate heroin. Indeed, as Power Ag CJ observed, “This was, in fact, a very substantial quantity more than 1 kilogramme of substance which there seems to be no doubt would have been used to adulterate heroin.” Power Ag CJ nevertheless recognised that the case represented a difficult sentencing problem. He held that a sentence of imprisonment was called for and, in the circumstances, 4 years would have been appropriate.
It is not clear, with all respect to Power Ag CJ, what the impact of the potential use of the chemicals which were the substance of the charge in Attorney General v Ye Wing Leung (above) in relation to the view the Court of Appeal took in that case.
The matter was further considered in HKSAR v Li Oi Yee [2012] 1 HKLRD 276. The charge in that case was attempting to traffic in a dangerous drug. The charge was manifestly not the charge the accused faces in the present case. The accused in Li Oi Yee was found to have stopped outside a flat in possession of 39.5 grammes of a substance she believed to be ‘Ice’. At trial, it was found she possessed the substance with intent to traffic and imposed a sentence which was approximately 50 per cent of that which the trial court thought was appropriate, and that meant a sentence of 4 years.
The Court of Appeal held that the harm which was created by such substance is “the advancement of the culture and of the business of trafficking in dangerous drugs. The mens rea in this case is precisely the same as the mens rea had the substance turned out to be a dangerous drug, and there is, by reason of this mens rea, a substantial degree of criminality”. Stock VP held that an immediate custodial sentence was warranted and, in dismissing the appeal against sentence, suggested that the sentence might well have been 5 years rather than 4 years.
There is nothing in the admitted facts in the present case as to the true nature of the substance. That said, it is difficult to ascertain how influential the chemical nature of the substance in Ye Wing Leung (above) was to determining the appropriate sentence. It is also difficult to see how the sentence relates to an appropriate sentence upon the premise that the purported heroin was real heroin. It would have been outside the guidelines then existing. Those guidelines only went to trafficking in 600 grammes. Even if the substance was 600 grammes, it would have attracted sentencing in the 15- to 20-year bracket. This discussion proceeds on the perhaps unreal assumption that the narcotic content approximated the weight of the substance in Ye Wing Leung.
Even using the 600-gramme benchmark, sentencing by reference to that puts the starting point at around 20 years. The final result - that is a conviction after trial of 4 years is 20 per cent of the approximate notional sentence on the premise of 600 grammes of narcotic.
Ms Lee accepted that the substance was intended to be resold commercially. That is, it was to be trafficked. There was paraphernalia consistent with that in the possession of the accused at his residence.
It is to be remembered that in Li Oi Yee (above), in considering the appropriate sentence, Stock VP laid emphasised on the seriousness of the mens rea of the crime. In that case, he was talking about 5 years’ imprisonment being justified for attempting to traffic in what the accused thought was just under 40 grammes of ‘Ice’.
In my judgment, simply fixing the sentence at something of the order of 50 per cent of the approximate narcotic content of the drug had it been the real thing is not a conclusion justified by the authorities. Clearly, a custodial sentence is warranted and there is great force to the points made by Stock VP in Li Oi Yee (above) about mens rea being a matter of particular aggravation. Accordingly, a serious view can be justified upon the basis that the accused in the present case intended to keep the substance for unlawful trafficking. The act which is preparatory for the purpose of the charge is keeping the drugs in his parents’ residence.
Resolution
Would the accused please stand up?
As Power Ag CJ observed in Ye Wing Leung (above), this is a difficult sentencing problem. That is no understatement.
Doing the best I can to navigate through the guidance provided by the Court of Appeal in the two authorities I have considered, I think a starting point of 5 years is appropriate.
Of course, the accused pleaded guilty at the earliest possible moment and is entitled to a full one-third discount on his sentence. Accordingly, I order that the accused be imprisoned for a period of 3 years and 4 months, and that is the order of the court.