COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug and one count of possession of a dangerous drug.
On 24 January 2022, the defendant unlawfully trafficked in a dangerous drug, namely, 1,124 grammes of a mixture containing 892 grammes of heroin hydrochloride at Room 1718, Sau Yat House, Sau Mau Ping Estate, Kowloon. These are the particulars of Count 1.
Particulars of Count 2 are that on the same day and in the same place, the defendant had in his possession a dangerous drug, namely, traces of methamphetamine, ‘Ice’.
On the material day, a team of police officers was conducting an anti-narcotics operation in plainclothes in the defendant’s building. They were on a staircase on the 17th floor. At 10 pm, they saw the defendant and a male walking upstairs from the 16th floor and intercepted them.
The defendant admitted he lived on the 17th floor at Room 1718. On him were two mobile phones, his house key and a wallet containing $8,270. Using his key, the police opened the door to the defendant’s home and searched it.
In a bedroom, the police found the drugs of Count 1. There were 17 resealable plastic bags containing 422 grammes of a mixture containing 309 grammes of heroin and a bag containing two bricks of heroin containing a total of 702 grammes of a mixture containing 583 grammes of heroin.
The police also found paraphernalia used for packaging dangerous drugs including a large number of resealable plastic bags, five digital electronic scales and scissors. They also found an inhaling device commonly known as an ‘Ice’ bottle, containing 62 millilitres of a liquid containing traces of methamphetamine, the drugs of Count 2.
The defendant was arrested and cautioned before admitting all the drugs belonged to him and were for sale. Later under caution in an interview, he further admitted that an unknown male he had met earlier gave all the drugs to him. He would receive a reward for delivering drugs as instructed to two different locations. He clarified he would not sell them himself, he would deliver them as requested.
The money found in his wallet was paid to him for making deliveries. An unknown male also gave him all the paraphernalia related to packaging drugs. The inhaling device belonged to him and he said he used it for smoking cannabis.
In one of his mobile phones, the police found WhatsApp conversations between the defendant and other parties relating to delivery of drugs. They also found photographs of bags of drugs on electronic scales in the same phone. The defendant now admits he possessed all the heroin for the purposes of unlawful trafficking and admits the average retail price at the material time for that quantity of heroin was about $1,224,036.
Mitigation
The defendant was 17 years old at the time of his arrest and is now 19. I have heard and read full mitigation. Ms Wong has said all she can say on his behalf. I have received a letter from the defendant that sets out his tragic, neglected background from a very young age, which inevitably meant he was susceptible and vulnerable to drug traffickers who would use him.
The defendant has one previous conviction. When he was 14, he was sent to reformatory school for possession of dangerous drugs. By that time, he had no parents in his life, was living with an elder sister who gave him no support or guidance. I will not elaborate further but it would appear from his letter that their relationship was very toxic. I have no reason to doubt the contents of his letter, it would appear that every member of his immediate family were involved in either drugs or crime or have served terms of imprisonment, all from when the defendant was below 10 and in primary school. It is no wonder he ended up in reformatory school at 14.
What it meant was that he, from a very young age even before he was 10, he would rarely go home and slept in parks or cyber cafes or at friends’ homes. He did not want to go home because of his relationship with his sister, who was his only relative at home at that time. He had no home life.
This also meant that he had no money and was an easy target for a local triad involved in drug trafficking who offered him money to work for him. This led to his first conviction and sentence to reformatory school. When he was released, he did find employment but he had part of his salary stolen by his sister which affected his motivation to work. He then went to try to continue his education at a vocational training centre but dropped out. By then he was living on his own as his sister had moved out. This led to his reuniting with bad peers and becoming involved again in trafficking in drugs. He was arrested for this offence not long after becoming reacquainted with them.
His best mitigation is his plea of guilty. I understand his age at the time of the offence was 17 but he was not of extreme youth. By then he had already served a term of strict discipline yet that did not deter him from becoming involved with drugs again. I understand that if he had had parental care, love and guidance from a young age, he may not have ended up in this predicament. In some way he was a target and is a victim.
Trafficking guidelines
I have considered all mitigation, facts of the case as well as tariffs, guidelines for both trafficking heroin hydrochloride as well as being in possession of traces of methamphetamine.
I have considered the approach to sentencing those that traffic in dangerous drugs. With the Court of Appeal’s guidance in the most recent authority, HKSAR v Lee Ming Ho [2024] HKCA 150, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
In the approach of 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. The sentencing guidelines for heroin is found in the authority of R v Lau Tak Ming and Others [1990] 2 HKLR 370. And the starting point for trafficking between 600 and 1,200 grammes of heroin is 20 to 23 years’ imprisonment. Therefore, trafficking in 892 grammes of heroin in Count 1 mathematically attracts a starting point of 21 years and 6 months’ imprisonment.
As far as the second step is concerned, assessing role and culpability, I will accept that the defendant appears to have stored the drugs acting as a storekeeper as well as a courier. It would appear that he also packed drugs upon instructions before delivery but I take that to be part and parcel of his job as a storekeeper.
Therefore taking into account the third step, his sentence will be determined by the relevant tariff. I intend to take a mathematical approach to the starting point. I will take a starting point of 21 years and 6 months’ imprisonment.
The fourth and fifth step require me to consider whether there are any aggravating factors or any exceptional mitigating factors. Here, I do not find either aggravating or mitigating factors.
The defendant pleaded at the earliest opportunity and is entitled to a one-third discount. After that discount is applied, I sentence the defendant to 14 years and 4 months’ imprisonment for Count 1.
The last step to take is to stand back and look at the overall sentence in order to ensure that it is a fair, just and balanced sentence in all the circumstances, not only the offence but also the defendant. It is a significant term of imprisonment but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced or unjust.
However, seldom have I come across a sadder background for a young man. This last step means I can take into account the defendant’s circumstances and in this rare case, his personal circumstances has led me to reduce his sentence for Charge 1 by 1 year.
As for Charge 2, possession of traces of methamphetamine, I have considered HKSAR v Mok Cho Tik [2001] 1 HKC 261, and the Court of Appeal’s view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in range of 12 to 18 months’ imprisonment.
There is also the latent risk factor to consider, that is the latent risk to society when drugs are at large in a sense that they are possessed by a drug user who here admits he dealt with and delivered drugs. Latent risk factor can justify an enhancement to a starting point. For this charge of possession of dangerous drugs, I will take a starting point of 18 months’ imprisonment and after the full one-third discount is applied, the defendant is sentenced to 1 year imprisonment for Count 2.
Therefore, for Charge 1, the defendant is sentenced to 13 years and 4 months’ imprisonment; for Charge 2, the defendant is sentenced to 1 year imprisonment. Taking into account the totality principle and the facts of the case, I will order the sentences for both counts to be served concurrently.
Accordingly, the defendant is sentenced to a total of 13 years and 4 months’ imprisonment.