COURT: The defendant is charged with two counts of trafficking in dangerous drugs. In respect of Count 1, it is alleged that he unlawfully trafficked in 85.03 grammes of a crystalline solid containing 84.41 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’, outside Block 2, Kam Fung Garden, 458-466 Castle Peak Road, Tsuen Wan, New Territories. Count 2 involves 13.55 grammes of a crystalline solid containing 13.45 grammes of ‘Ice’ which was found inside Flat G, 7th Floor, Block 2, Kam Fung Garden, 458-466 Castle Peak Road, Tsuen Wan, New Territories, for which the defendant is alleged to have unlawfully trafficked in.
The defendant pleaded guilty at the Eastern Magistrates’ Court in July this year and was committed for sentence before the Court of First Instance. He appears before me today for that purpose.
The facts giving rise to the two offences are these.
At around 7.47 pm, on 16 February 2023, the defendant was seen holding a box leaving Block 2 of Kam Fung Garden and acting suspiciously. When approached by the police, the defendant dropped the box onto the ground. He was intercepted and upon search of the box, the police found a plastic bag therein, which in turn contained four resealable plastic bags containing what was subsequently confirmed to be a total of 82.6 grammes of a crystalline solid containing 82.0 grammes of ‘Ice’, another resealable plastic bag containing, on subsequent analysis, 2.43 grammes of a crystalline solid containing 2.41 grammes of ‘Ice’.
These drugs, with an estimated street value of around HK$41,324, form the subject matter of Charge 1.
The defendant had with him a bundle of three keys, a mobile phone, and $2,500 cash on him. The defendant was arrested for Charge 1. Under caution, he remained silent.
At about 8 pm the same evening, the police escorted the defendant to the flat and gained access therein using the keys found on the defendant. Upon search of the flat, the police found the following dangerous drugs and related paraphernalia.
Inside the bathroom on the cabinet, there was found a box containing one plastic bag containing a total of 1.49 grammes of a solid containing N-isopropylbenzylamine, which is not a controlled substance, one plastic bag containing 12.5 grammes of a crystalline solid containing 12.4 grammes of ‘Ice’, two resealable plastic bags containing a total of 1.05 grammes of a crystalline solid containing 1.05 grammes of ‘Ice’.
In the living room and bedroom, there were found a large number of resealable plastic bags, all together three digital scales, a spoon as well as a glass bottle containing liquid with a glass tube and a straw.
The quantity of ‘Ice’ found inside the box in the bathroom of the flat, with an estimated street value of around HK$6,585, form the subject matter of Charge 2.
The narcotic contents of the above seized drugs were subsequently found to be a total of 13.45 grammes of ‘Ice’ in the flat.
Apart from the drugs and paraphernalia, personal belongings and documents relating to the defendant were found inside the flat. Upon arrest for Charge 2 and under caution, the defendant remained silent again. The CCTV footage of the lift lobby of the building revealed that the defendant had gone up to the 7th floor where the flat was earlier that evening at around 6 pm and later walked out from the building carrying the box at around 7.46 pm. That was when he was intercepted by the police.
The defendant accepts that he knowingly possessed all of the subject dangerous drugs for the purpose of trafficking.
According to the antecedents statement, the defendant is now 41 years old, born in China, and attained education of up to Secondary 5 level. He is single, but he has a girlfriend and two sons, and I am told the two sons are aged 7 and 9.
According to the mitigating letter submitted to the court this morning jointly written by the defendant’s parents, the mother of the defendant has diabetes and heart disease, and it is these circumstances that the defendant wishes the court to consider.
The defendant has three previous convictions for offences which are unrelated to dangerous drugs. He was first convicted of assault occasioning actual bodily harm in 2006, attempted theft in 2008, and an offence of selling or supplying liquor without a licence in 2013. For the attempted theft case in 2008, he was sentenced to community service order, but he later breached that order in 2009 and was sent to the Drug Addiction Treatment Centre in Hei Ling Chau. There is hence indication that he had been a drug addict at least back in 2008 or 2009. But as confirmed by his counsel, it is said that the defendant is no longer a drug addict and he possessed the whole quantities of drugs found in this case for the purpose of trafficking.
Mitigation
In mitigation, Mr Yuen, appearing for the defendant, invites me to consider the defendant’s role and culpability as falling within the lowest end of the hierarchy, namely, that of a courier or storekeeper. It is said that nothing suggests that the defendant was an actual or direct trafficker, let alone the manager, organiser, operator, or financial controller making any substantial gains. It is also said that there is no other aggravating factor involved in this case. I am prepared to accept that submission of Mr Yuen.
Further, as Mr Yuen pointed out, none of the defendant’s previous convictions is drug-related, and his record does not warrant any aggravation in sentence. As indicated by his guilty plea at the earliest opportunity, the defendant appears to be remorseful for committing the offences, the subject of the present case.
Sentencing Principles and Tariffs
The approach in relation to sentencing drug trafficking offences has been set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, involving a six-step approach.
The first step requires the court to assess the gravity of the offence by looking at the type and quantity of the drugs in question. The drug here is ‘Ice’ and the total quantity of narcotics involved for the two charges was 97.86 grammes.
The courts of Hong Kong have taken a serious view of drug trafficking, particularly in relation to hard drugs such as ‘Ice’. This is because this type of drug is highly addictive and has serious consequences for both the individual and the community at large. Such a serious view is reflected in the maximum sentence provided for trafficking in dangerous drugs offence, which is one of life imprisonment and a $5 million fine upon conviction on indictment.
It is also reflected by the courts in the nature of sentences and levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing drug trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines in the form of tariffs for various forms of dangerous drugs, including ‘Ice’, the subject of the charges.
The second step is an assessment of the defendant’s role and culpability based on the evidence. As the Court of Appeal observed in HKSAR v Lee Ming Ho [2021] HKCA 150:
“One of the more salient changes to emerge from Herry Jane Yusuph was a move away from the rigid arithmetical application of starting points and sentences based purely on narcotic quantity to a more discretionary approach involving an assessment of the offender’s role and culpability.”
On the facts of this case, I am prepared to accept Mr Yuen’s submission that the defendant’s culpability is at the lowest rank in the hierarchy, namely, that of a courier or storekeeper. In view of the packaging of the drugs and the paraphernalia found, it seems clear that the flat was used as a place for storing and packaging the drugs. And at the time of his arrest for Charge 1, the defendant was most likely delivering the drugs found inside the box he was carrying at the time.
The next step in the six-step approach is to identify where in the relevant band the defendant came. The tariffs that are applicable to trafficking in ‘Ice’ are set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For the quantity of ‘Ice’ involved in Charge 1, the relevant band is between 70 and 300 grammes of ‘Ice’, which would normally call for a sentence of between 11 and 15 years’ imprisonment after trial. For the quantity involved in Charge 2, the relevant band is between 10 and 70 grammes of ‘Ice’ and a starting point of sentence of between 7 and 11 years is applicable.
For the purpose of this sentencing exercise, I would adopt a combined approach and consider the whole lot of drugs for both charges together, namely, 97.86 grammes. For this quantity, a sentence in the range of 11 to 15 years is applicable.
The next step in the six-step approach requires the court to consider the presence or otherwise of any aggravating and mitigating circumstances. As the Court of Appeal observed in Tam Yi Chun at paragraph 35:
“These are starting points after trial, in other words before enhancement for aggravating features, if any, and before reduction for such mitigating factors, most commonly in this category of offence, a plea of guilty. It is still for the sentencing judge to take into account, in application of the tariffs, the degree of involvement of the offender, the previous history if any of narcotic offences.”
As I indicated, I accept that there is no aggravating circumstances present in this case in terms of the defendant’s role and other circumstances of the offence, including the background of the defendant and his previous criminal record.
I have taken into account all that were said on behalf of the defendant, both in terms of the written mitigation advanced and the letters submitted in court this morning. The defendant’s background may cause some sympathy for he is a father of two young children, with parents who are of age and the mother who is suffering from diabetes and heart disease. Be that as it may, it is well established that personal circumstances bear little weight as a mitigating factor in relation to an offence as serious as the present, which is drug trafficking: see HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
The only real mitigating factor that is applicable in this case is the defendant’s early guilty plea for which I am prepared to allow a full one-third discount.
Taking into account all the aggravating and mitigating circumstances, the final sentence I would impose on the individual charge is as follows.
For Charge 1, the amount of ‘Ice’ involved is 84.41 grammes. A starting point of 11 years and 3 months is applicable, and given the full one-third discount, the sentence for that charge would be reduced to one of 7 years and 6 months.
For Charge 2, the amount of ‘Ice’ involved is 13.45 grammes of ‘Ice’ and a starting point of sentence will be around 7 years and 2 months, which after the one-third discount for the guilty plea would be reduced to 4 years and 9 months.
As indicated, I would adopt a combined approach in terms of the overall sentence in accordance with the totality principle. The court is prepared to sentence the defendant on the total quantity of dangerous drugs rather than on the individual smaller quantities. See HKSAR v Yip Pik Kwai [1999] 3 HKLRD 42, 43. That approach can properly be applied where the drugs are of a similar kind. In this case, both charges concern the same type of drug, namely, ‘Ice’.
In combining the quantity of ‘Ice’ in both charges, the total quantity would be 97.86 grammes, warranting a starting point of 11 years and 5 months. And allowing the full one-third discount for early plea, that sentence would be reduced to 7 years and 7 months. And that would be the overall sentence that I would adopt for both Charge 1 and Charge 2.
The final step of the six-step approach requires the court to step back and look at the overall sentence to see if it is fair and just. The overall term of 7 years and 7 months sufficiently reflects the criminality involved as well as the mitigating circumstances present and is, hence, in my view, fair and just.
For both charges, you are sentenced to an overall term of 7 years and 7 months’ imprisonment.
(Discussion re sentence)
As I indicated, the combined approach would be on the basis of the overall quantity of drugs. But as I have indicated the individual sentences for both charges, perhaps I would also make for the record the order that 1 month of the sentence for Charge 2 would run consecutive to the sentence for Charge 1 - basically to add 1 month to the 7 years and 6 months for Charge 1 - and then it would be 7 years and 7 months to reflect the overall term that I impose on the basis of the combined approach.