COURT: The accused pleaded guilty to one count of conspiracy to traffic in a dangerous drug, namely, 109.01 grammes of a solid containing 106.06 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’, and one count of failing to surrender to custody as shall have been appointed.
Facts of the Case
At around 11.26 pm on 11 June 2020, the accused was found in one of the rooms, Room 4 of Flat 1217 of Sun Hing Building, No. 607 Nathan Road, Kowloon, together with two other persons - a female and a male surnamed Chan (who later passed away in October later that year). That was during a police anti-dangerous-drug operation. Upon search of the room, the police found underneath a pillow placed on the bed a paper box containing five red packets, each of which contained a transparent resealable plastic bag, the bags together held the subject quantity of ‘Ice’, the subject of Count 1. The police also found a bunch of empty transparent resealable plastic bags, 22 empty red packets and an electronic scale on another bag in the room.
Under caution, the defendant stated that the ‘Ice’ did not belong to her, but to a man named “Dai Hung” who is the man surnamed Chan, who had just come into the room and placed them therein.
Subsequently, in a cautioned video-recorded interview, the accused stated that she got acquainted with Dai Hung, that Mr Chan, two years ago whilst living in a guesthouse and it was Chan who rented Room 4 and allowed her to live there alone. Chan would visit her daily and would bring drugs ‘Ice’ and other paraphernalia to the room to package drug every day. After packaging, Chan would sell the drugs to others at the door entrance of the flat with around five to six customers purchasing drugs from him every day. As to the five packets of drugs seized from the room, the accused further said the drugs were all packaged by Chan who then put them underneath the pillow. She knew that amongst the five packets, three would be sold at $8,000 and two at $4,000 per bag. She further admitted that she had agreed with Dai Hung to allow him to use the room for such trafficking activities in return for $500 as well as free consumption of drugs as her reward.
The estimated street value of the drugs ‘Ice’ seized was around HK$59,000.
It transpired upon investigation that the accused and another unknown male were the tenants of Room 4 since late May 2020.
Count 2
In respect of Count 2, the accused had been remanded in custody since her arrest on 11 June 2020. She applied for bail at the Court of First Instance of the High Court on 22 December 2020 and was granted bail on the condition that she had to surrender to custody at the Tai Lam Centre for Women before 3 pm on 7 January 2021. The reason for her being granted bail was that she had to handle the funeral matters of her daughter who had passed away.
She failed to surrender to custody on 7 January 2021 and a warrant of arrest was issued the next day. The accused was re-arrested on the street during an anti-crime patrol two months later on 18 March 2021. Under caution, she stated that she knew she had to report to the Tai Lam Centre but failed to do so as she had to arrange the funeral of her daughter.
Defendant’s Background
The accused is now aged 60. She does not have much education, up to Form 4 in China. She was a drug addict in heroin, according to her, at the time of the offence. She lived alone on CSSA, and her husband had passed away in 2015. She had a son and daughter, but her daughter also passed away in late 2020.
The accused has a string of criminal records since 1995 - six convictions, items or convictions for a total of nine offences - out of which four were for possession of dangerous drugs, and one for trafficking.
Sentence
The sentencing approach in relation to trafficking in dangerous drugs is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. In Secretary for Justice v Pastana Carvalho Andreza Narely [2022] 3 HKLRD 727, the Court of Appeal reiterated and emphasised the importance, particularly in offences of drug trafficking, of following the established sentencing principle and maintaining consistency of sentence by the court.
How that sentencing approach in Yusuph is to be applied to an offence of conspiracy to traffic in dangerous drug (as opposed to the substantive trafficking offence), can be found in a number of First Instance sentencing decisions, such as HKSAR v Kwan Tsz Lam and Another [2023] HKCFI 780, HKSAR v Lum Chi Lok [2021] HKCFI 1919.
With that in mind, I will set forth and follow the six-step sentencing approach as set out in Yusuph.
The first step is to identify the relevant guideline band applicable to the quantity of drug concerned. In accordance with HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, for trafficking in a quantity of between 70 grammes and 300 grammes of ‘Ice’, the appropriate starting point should be in the range of 11 to 15 years’ imprisonment.
The second step is to assess the defendant’s role and culpability on the evidence.
The crux of the defendant’s role in this case was to allow the trafficking activities to be carried out in the room she resided in as a tenant, in particular, the repackaging and storing of dangerous drugs for sale to be conducted there by the other man, Chan. This falls squarely within the ambit of “storekeeper”, as stated in paragraph 49 of the Court of Appeal’s decision in Yusuph. That said, the court in Yusuph also made it clear that labels may sometimes be inapposite in conveying the real role of the offender in question, and it is important for judges to make an ultimate assessment on an individualised basis.
In this regard, I take into account the fact (as admitted) that the defendant had been allowed by Chan to live in the room since late May 2020, and according to her, she knew that Chan was a drug dealer and would bring drug ‘Ice’ and other paraphernalia to the room for packaging for the purpose of sale therein every day. Her agreement with Chan, the subject of the charge, was premised on actual monetary reward as well as free supply of drug for her own consumption.
Considering all relevant circumstances, I am not persuaded by Mr Fung’s submission that the defendant in this case was not even a “courier or storekeeper” and merely just a “cover-up”. The defendant clearly had knowledge of what was going on in the premises and her participation served real practical purpose in the conspiracy. That said, I will refrain from drawing further adverse inference on the fact that the defendant’s DNA was found on the paper box containing the ‘Ice’, the pillow covering and the electronic scale, bearing in mind that she did reside in the room and her agreement with Chan did allow her access to drugs for her own consumption. In this regard, her DNA could well be left on the pillow and the paraphernalias in question for purposes other than that of a more active involvement in the conspiracy to traffic.
In all, I determine that the defendant’s role should be one of an ordinary storekeeper.
The third step of the sentencing exercise is to identify where in the relevant band the defendant comes.
As illustrated in the decisions that I have just mentioned, including Kwan Tsz Lam, even though the charge is one of conspiracy to traffic, in the event that there is an exact number of dangerous drugs identified as being trafficked, it is appropriate to adopt the same mathematical approach as that adopted for actual substantive trafficking cases in order to derive the arithmetically-determined starting point based on the quantity of drugs actually found.
In the circumstances of the present case, the arithmetically-determined starting point for trafficking in the quantity of ‘Ice’ seized is about 11 years and 7 months’ imprisonment. The defendant’s role, as I find, as a storekeeper warrants no departure from that starting point.
The fourth step requires me to consider whether there are aggravating factors which might require me to enhance the starting point.
The defendant has six previous convictions for a total of nine offences since 1995 - out of which four were for possession of dangerous drug. She had also been convicted once of trafficking in dangerous drug in 2005 for which offence she was sentenced to 1 year 8 months’ imprisonment. As the Court of Appeal held in HKSAR v Abdallah [2009] 2 HKLRD 437, a previous drug-related conviction in particular for trafficking in dangerous drug would be an aggravating factor. In the circumstances of this case, and given the quantity of drugs involved, I am minded to enhance the sentence upward for 5 months, leading to a notional starting point of 12 years.
The fifth step is to consider all the mitigating factors simultaneously when assessing the overall discount from the notional sentence: first, guilty plea after absconding and re-arrest.
Although the defendant did tender her guilty plea at the committal stage, she did so after she had been re-arrested, having absconded bail given to her by the Court of First Instance. Pending her arrest, hearings at the committal proceedings had to be adjourned, and public resources were wasted. In accordance with the established principle, see in particular HKSAR v Lo Kam Fai [2016] 2 HKLRD 308 and HKSAR v Lam Chi Kwan [2019] HKCA 538, a reduced discount of less than the full one-third discount in the range of 20 per cent to 25 per cent is warranted. Taking into account the reasons that the defendant asked for and obtained bail, being that she had to attend her daughter’s funeral, and the fact that she had only managed to abscond for a relatively short period of time of two months, although I should mention that but for her re-arrest she would have continued the period of absconding, I would allow a 25 per cent discount for the present charge, thus bringing the sentence to one of 9 years.
Intended Assistance to Authority
It was suggested in mitigation on the defendant’s behalf that she had indicated her willingness to assist the authority to testify against Chan, but was denied the opportunity as a result of the passing away of Chan four months after her arrest in October 2020. I am asked therefore to reduce sentence on that account. There is no justification to allow her such a reduction. It is accepted by Mr Fung on the defendant’s behalf and confirmed by Ms Chan who appeared for the prosecution that apart from the mere indication of her willingness to assist in the video interview, nothing further was done to follow up, and the mere indication to assist has eventually led nowhere. Thus, the fact remains that no practical assistance has been given at all, and it would be speculative to assume any could potentially be offered to, or in fact needed by, the authority in the circumstances of this case.
No discount for sentence should therefore be allowed in that regard.
Personal Circumstances
In relation to personal circumstances, while the court has some sympathy of the circumstances and the plight of the defendant with the passing away of her husband and the daughter and the situation that she had found herself in, it is, however, well established that these count for little in relation to an offence as serious as the present. See Abdallah and Yusuph. No discount can therefore be given on account of the defendant’s personal circumstances.
Overall Sentence
The sixth and final step 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 of the offence and the offender. As held in HKSAR v Suen Yuk Hang [2021] HKCFI 2940, the sentencing judge should ensure that the sentence is not a crushing one but one that is fair, balanced, timely and just.
Having considered all the circumstances of this case, the sentence of 9 years, in my judgment, would not be a crushing one that warrants any further reduction.
Second Count
In relation to Count 2, the failing-to-surrender-to-custody offence, as accepted by the defendant in mitigation, the starting point of 6 months is appropriate for such an offence in the circumstances of this case. See Lo Kam Fai and Lam Chi Kwan.
Determination
I see no aggravating factor for this particular offence, and upon the defendant’s timely guilty plea for this particular offence, she is entitled to a full one-third discount, leading to a sentence of 4 months’ imprisonment for Count 2.
Totality
It is beyond doubt that the two offences are distinct from each other. Bearing in mind the totality principle and in light of what the Court of Appeal said in Lo Kam Fai and Lam Chi Kwan, the sentences for these two offences should be ordered to be served consecutively. To do otherwise would be against the principle and rationale governing this type of offences.
Accordingly, I order that the term of 9 years on Count 1 shall run consecutively with the 4 months’ imprisonment on Count 2, resulting in a total of 9 years and 4 months’ imprisonment.
Defendant, please stand up. I sentence you to a term of 9 years and 4 months’ imprisonment.