COURT: The defendant pleaded guilty in the Magistrates’ Court to three counts of trafficking in dangerous drugs and one count of conspiracy to traffic in dangerous drugs on 6 March 2023 and was committed for sentence. He has confirmed his plea to all four charges and agreement to the Summary of Facts.
The defendant pleaded guilty to Charge 1, unlawfully trafficking in 1.4 kilogrammes of a mixture containing 1.2 kilogrammes of heroin hydrochloride and 1 kilogramme of a crystalline solid containing 986 grammes of methamphetamine hydrochloride on 22 April 2022, near a car park of a village in Ping Che Road, Ta Kwu Ling, New Territories.
For Charge 2, the defendant pleaded guilty to unlawfully trafficking on the same day in premises rented by him, close to the car park of Charge 1, 16 kilogrammes of a crystalline
solid containing 15.83 kilogrammes of methamphetamine hydrochloride and 11.27 kilogrammes of a mixture containing 9.57 kilogrammes of heroin hydrochloride.
The particulars of Charge 3 are that on the same day in the same premises, the defendant unlawfully trafficked in 81.4 grammes of a solid containing 55.6 grammes of ketamine.
The particulars of Charge 4 are that the defendant between 20 and 21 April 2022, both dates inclusive, conspired together with other unknown persons to unlawfully traffic in dangerous drugs, namely methamphetamine hydrochloride, commonly known as ‘Ice’ and heroin hydrochloride.
Summary of Facts
On 22 April 2022, police officers conducting an anti-narcotics operation in a village where the defendant lived and observed him coming out of his home about 1 pm, holding a bag and pushing a scooter. He rode the scooter away but was stopped at the car park of that village. A bag hung on the handlebar of the scooter. In it, the police found the drugs of Charge 1. There was one packet of methamphetamine hydrochloride and four packets of heroin hydrochloride.
He was arrested and under caution admitted he was trafficking in drugs because he wanted to earn quick money. Keys to premises were found on him and he then took the police back to his home on the 1st floor of a village house rented in the defendant’s name from 1 March 2022.
In the premises, the police found 16 plastic wrapped tealeaf tinfoil bags or packets containing methamphetamine hydrochloride and 32 plastic wrapped paper blocks or packets containing heroin hydrochloride. They also found 36 resealable plastic bags containing the ketamine of Charge 3. There were also some empty resealable plastic bags, two electronic scales and a piece of paper containing handwritten transaction records. In the premises, the defendant admitted the drugs were for the purposes of trafficking. The estimated street value of all of the drugs found of Charges 1 to 4 was $18,338,301.
That piece of paper containing handwritten transaction records noted the following. On 20 April, he had 26 packets of pork which the defendant says is methamphetamine hydrochloride, ‘Ice’ and between 20 to 21 April, a total of nine packets or pieces went out. On 22 April, one packet or piece went out and only 16 remained. That one piece was in his possession when he was arrested, leaving his home and part of Charge 1. The police found the remaining 16 packages or pieces containing ‘Ice’ in the premises.
In the same record, he had written on 20 April, he had 38 packets or pieces of “CD”, which the defendant says is heroin hydrochloride, and on 21 April, two went out and on 22 April, four went out and only 32 remained. Those four packets or pieces were in his possession when arrested leaving his home and part of Charge 1. The police found the remaining 32 packets or pieces containing heroin in the premises.
It is clear from that record that on 20 April, he had 26 packets of methamphetamine hydrochloride and 38 packets of heroin hydrochloride in his home. He told the police that on 20 April 2022, he had, following instructions, picked up two suitcases containing the heroin and ‘Ice’ to store at home. He made a record of its contents on that document 6. He was storing them and delivering them; both a storekeeper and a courier.
He frankly told the police he was in desperate need of money, having lost his job during COVID. He was offered money to rent premises in order to store drugs and he would have to bring them to the entrance of the village every day as instructed. He would get a reward of $1,000 per piece he moved or couriered. The ketamine found was leftover from some time before when he was given ketamine to repack and weigh to sell.
Mitigation
I have received full mitigation in writing from Mr Cheung, he has said all he can say on behalf of the defendant. The defendant’s best mitigation is his plea of guilty. He did not hesitate in deciding to plead guilty which is why this case was committed for sentence somewhat expeditiously. He is now 20 years old and had a clear record. Before becoming unemployed in February 2022, the defendant had been a warehouse keeper, earning $10,000 each month. He had been tempted by the lure of easy money and induced by a friend to become involved in drug trafficking.
The defendant comes from a broken family and was raised by a single parent who had little time for parental control and discipline. His mother had to work several jobs to maintain the defendant and his siblings, which meant he did not finish school and started working at the age of 15 years old. He did find a job but with the pandemic, he became unemployed and got into financial difficulty. A friend suggested they worked together, with the friend providing the defendant with a roof over his head and easy money, and in return, the defendant looked after and delivered drugs as a courier. I have seen the letter from the defendant who is very remorseful. And since his remand, has tried hard to better himself by studying. He has not given up on himself.
I have also a letter from the defendant’s mother taking some responsibility for his poor decisions and transgressions. She has asked for leniency on his behalf. I also have a letter from the defendant’s girlfriend to whom he was more forthcoming and explained how he became so involved with drug dealers and debts owed to them that meant he could not escape from them.
I also have a letter from his grandfather as well as his grandmother, uncle, aunt, a teacher as well as his football coach from school. I have taken into account all that they have had to say for and on behalf of the defendant. All ask for leniency and mercy.
Sentencing
I am most grateful to both the prosecution and the defence for their very detailed submissions and assistance with calculating sentence in this case concerning such a large quantity of both heroin and ‘Ice’.
Charges 1, 2 and 3 will be considered together. They were all committed on the same day and according to the authority of HKSAR v Wan Lau Mei CACC 389/2013, what makes most sense and is the best approach is to add up all of the drugs in these three charges, and impose the same sentence for each charge to be served wholly concurrent to each other.
Here, there are two types of drugs but for both heroin and ‘Ice’ if the amount involved for each drug is over 600 grammes, then the tariff becomes the same, HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437. Essentially, where between 4,000 and 15,000 grammes of either drug is trafficked then the tariff would be between 26 to 30 years’ imprisonment. Where the quantity is over 15,000 grammes or 15 kilogrammes of either drug, the tariff is at the discretion of the sentencing court, over 30 years’ imprisonment.
Because the tariff is the same and for the purposes of calculations or mathematics, I will add together the heroin and ‘Ice’ of Charges 1 and 2 which totals 27.586 kilogrammes.
I will convert the ketamine in Charge 3 to the equivalent of ‘Ice’. I will convert 55.6 grammes of ketamine using the conversion method to ‘Ice’ which is the equivalent of 7.67 grammes. When I add this amount to 27.586 kilogrammes, the total amount of drugs becomes 27.593 kilogrammes.
Therefore, the sentencing starting point for each of Charges 1, 2 and 3 is over 30 years. There is also the aggravating factor to consider; the one of trafficking in more than one serious dangerous drug.
Charge 4, a conspiracy to traffic offence of an unspecified quantity of dangerous drugs. However, I can arrive at an inferred quantity based on the handwritten record, E6, found in the defendant’s premises. The document records and the numbers represent the original quantity of pieces or packets of ‘Ice’ or heroin that he brought into his premises as well as the quantities of each drug taken out on each respective date.
Therefore, if I take away the pieces referred to in Charge 1, which were included in that transaction record, then, between 20 and 21 of April, the defendant delivered nine pieces of ‘Ice’ and two pieces of heroin hydrochloride. If I base the weight of each piece on the other similar pieces found in his premises and on average, one piece or bag of ‘Ice’ weighed 0.989 kilogrammes, therefore, nine pieces of ‘Ice’ weigh 8.901 kilogrammes. Similarly, the average weight of one piece of heroin found in the premises was 0.299 kilogrammes of heroin then two pieces delivered prior to his arrest, total 0.598 kilogrammes of heroin hydrochloride.
Since ‘ice’ and heroin, if over 600 grammes shares the same sentencing tariff as I have noted above, then Charge 4 would equate the defendant conspiring to traffic in 9.499 kilogrammes of dangerous drugs.
Despite Charge 4 being committed on different days to Charges 1 to 3, it is only a matter of two days difference, therefore, I intend to consider the dangerous drugs of all four charges together. To achieve an overall starting point, I intend to add together the drugs of all four charges as I have converted above. It would equate to 37.4947 kilogrammes of ‘ice’.
I have also taken into account the approach to the sentence of trafficking dangerous drugs as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I have considered the six-step sentencing approach set out in that authority. In this case, I accept and I am satisfied that the defendant was, on the evidence, a storekeeper as well as a courier. I intend to determine his sentence by the relevant tariffs and the quantity of dangerous drugs involved.
As I have said above, there is an aggravating factor of two types of very serious dangerous drugs in this case.
According to the tariffs, a sentence of over 30 years should be imposed. With the quantity here equating to 37.4947 kilogrammes of ‘Ice’ or heroin, I would take a starting point of 31 years’ imprisonment which I would increase by 6 months to take into account the one aggravating factor.
I am impressed by the defendant’s immediate efforts to better himself. In the same year that he was arrested and remanded, he began studying a social science foundation course at the Hong Kong Metropolitan University. He passed that course with a very good grade and is now pursuing economics and politics. I am also impressed by his instructions to plead guilty as soon as possible and for his case to be dealt with as soon as possible. His attitude, plea and letter exhibits real remorse and a determination to look forward positively. For these reasons and other mitigation I have considered relevant, I intend to reduce that starting point of 31 years and 6 months by 1 year.
His plea of guilty at the earliest opportunity means he benefits from a discount of one-third from that starting point of 30 years and 6 months.
Lastly, I have taken into account the sixth step of Herry Jane Yusuph which is to stand back and observe the overall sentence to ensure that it is fair, balanced and just in all of the circumstances of the offence and the offender; to ensure that it is not a crushing sentence. This is particularly relevant to cases involving multiple offences or where there are several aggravating factors which mean multiple enhancements. Here there is only one aggravating factor taken into account.
Here in approaching this principle, I have weighed it against the sentence of just over 20 years’ imprisonment, the quantity of drugs and the facts of the case. Standing back, 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.
After that discount of one-third is applied, the defendant is sentenced to 20 years and 4 months’ imprisonment for each charge; all four sentences to be served concurrently. Accordingly, the defendant is sentenced to 20 years and 4 months’ imprisonment.