COURT: The defendant was convicted by a jury of one count of conspiracy to traffic in dangerous drugs, namely, 589 grammes of a mixture containing 505 grammes of heroin. On 2 September 2020, a parcel was intercepted and examined by Customs officers. Heroin was found to have been hidden inside two of the items inside the parcel. The parcel, according to the airway bill attached to it, came from Malaysia and was to be delivered to prosecution witness number 1, Lau Chak-fung. Customs officers conducted a controlled delivery and arrested PW1 when he accepted delivery of the parcel.
The defendant had instructed PW1 to receive the parcel and also instructed him to buy an electronic scale and ziplock bags. According to PW1, the defendant had told him that another boss or the staff of the boss might contact him and give him instructions as to how to deal with the contents of the parcel after he had received it. The heroin in question had a street value of approximately $880,000-odd.
The defendant is now aged 24 years old and was 21 years old at the time of the offence. His father is aged 70 and mother is aged 50. The defendant was educated up to Form 5. He had a clear record prior to the commission of the present offence.
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I therefore follow the six-step sentencing approach as set out in Yusuph.
The first step is to identify the relevant guideline band or bracket applicable to the quantity of the drug concerned. The source of the guidelines in relation to the trafficking of heroin starts with the decision of the Court of Appeal in Lau Tak Ming [1990] 2 HKLR 370. The correctness of the guidelines in relation to trafficking in heroin was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.
The second step is to assess the defendant’s role and culpability based on the evidence. While there is evidence that it was the defendant who instructed PW1 to accept the parcel containing the heroin, the evidence suggests that the defendant was also acting on the instructions of others. Therefore, taking a view of the facts most favourable to the defendant, I would treat his culpability at the same level as that of an ordinary courier.
The third step of the sentencing exercise is to identify where in the relevant band the defendant comes. This would yield a starting point for the sentence. Although the defendant was convicted of a charge of conspiracy to traffic in dangerous drugs rather than the substantive offence, there is no uncertainty as to the quantity of the heroin agreed to be trafficked and as particularised in the charge. In respect of this defendant, for agreeing to traffic in 505 grammes of heroin, the proper starting point is 17 years and 7 months’ imprisonment.
The fourth step requires me to consider whether there are any aggravating factors which might require me to enhance the starting point. The fact that the defendant knew the parcel containing the heroin came from Malaysia means that an international element is involved, which is an aggravating factor. Applying the guidelines laid down in HKSAR v Chung Ping Kun, unreported, CACC 85/2014, 2 July 2014, at paragraph 9, this court would enhance the sentence by 1 year.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence, bearing in mind that the personal circumstances for this offence generally count for little. I have borne in mind the observations of the Court of Appeal in both Abdallah at paragraph 32 and Yusuph at paragraph 44, where the Court of Appeal stressed the seriousness of drug trafficking and the problems that it brings to families and communities. Accordingly, the defendant’s personal circumstances do not constitute mitigating factors for the purposes of the fifth step.
There are no considerations in the present case relevant to the sixth step of the exercise.
So for the reasons set out above, I sentence the defendant to a term of 18 years and 7 months’ imprisonment.