COURT: The defendant pleaded guilty before a magistrate to two charges of trafficking in a dangerous drug and one charge of conspiracy to traffic in a dangerous drug. He was committed before me for sentence.
In sentencing, I have taken into account the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the drug involved, personal background of the defendant, and mitigation to put forward on his behalf.
The facts of the case may be summarised as follows:
On 9 May 2022, police officers intercepted the defendant when he was leaving the room which he had started to rent since 24 January that year. The defendant was holding a paper bag in his hand. He put up his struggle and was subdued and handcuffed. The paper bag he was carrying contained dangerous drug, which was a total of 1,999 grammes of a crystalline solid containing 1,980 grammes of substance commonly known as ‘Ice’. This is the subject matter of Charge 1.
The defendant was arrested and under caution, he said, “The drugs were not mine. I only helped others to deliver the drugs and would receive $1,000 as reward each time. Give me a chance.”
Also found on the defendant were two keys to the room. He was escorted back to the room for a search. Further dangerous drug was found. It was 12,670 grammes of a crystalline solid containing 12,466 grammes of ‘Ice’. This is the subject matter of Charge 2. He was arrested for the offence of possession of dangerous drug. Under caution, he said, “The pork”, meaning drugs, “were not mine. I only came to take the drugs.”
Inside the room, other things were found, including bags of caustic soda, bags of N-isopropylbenzyamine, which is not a dangerous drug, two electronic scales, and some empty transparent resealable plastic bags.
In subsequent video-recorded interviews, the defendant made admissions including the followings:
(1) He was instructed by his boss to rent the room.
(2) He was introduced to his boss by another person.
(3) He was given three keys to the room and he gave one to the boss.
(4) He had deleted communication with the boss on his mobile phone.
(5) In mid-January, as instructed by the boss, he moved about 14 boxes and 6 nylon bags of items to the room. He saw inside the boxes and bags about 300 bags of drugs. The boss told him that those were unfinished products.
(6) In late February, as instructed by the boss, he took two bags into the room and was told by the boss that they contained ‘Ice’.
(7) On 22 April, as instructed by the boss, he took 8 more carton boxes to the room and was told by the boss that the boxes contained some materials.
(8) He had been engaged in drug trafficking activity for about half year since about 22 January.
(9) He received $1,000 for each drug delivery and got paid on about six occasions.
(10) For each drug delivery, the boss instructed him to take a specified amount of drugs and deliver to different locations; and
(11) There were originally 24 bags of ‘Ice’ in the recycling bags and some had already been delivered to others.
I was told that the defendant is now 28 years of age. He is single and has received education up to Form 6. He was unemployed at the time of the arrest. The defendant is not a first-time offender. In 2015, he was put on probation for the offence of possession of prohibited weapons. He has never committed any offence relating to dangerous drugs before.
Learned counsel for the defence, Ms Flora Cheng, stressed that the defendant pleaded guilty at the earliest opportunity. Ms Cheng informed the court that the defendant came from a grassroot family. To ease the financial burden of the parents, he, as the eldest son of the family, started to take up part-time jobs since Form 2. When the defendant reached Form 5, he came to know some undesirable peers. Eventually, he committed the offence mentioned and was put on probation with condition of living in a hostel. There, he worked as a baker and car cleaner. In 2016, the defendant sat in DSE and failed in all subjects. He began to work full-time thereafter. He first worked in a bakery. In 2019, he worked in a runway construction project and received good wage of about $40,000 per month. However, by the end of 2021, due to the pandemic, he lost this job. In the circumstances, he succumbed to temptation and committed the present offences.
Ms Cheng asked the court to take into account that the defendant has been cooperative after arrest and gave detailed account of what he did pursuant to the conspiracy. She asked the court to accept that, if not for his own admission, there is no evidence in relation to the conspiracy. She also highlighted that the bulk of the drugs which the defendant agreed to deal with in the conspiracy had been found. The defence submitted a letter written by the defendant in which he expressed remorse. Ms Cheng told the court that the defendant has reflected upon his misdeeds and is determined to turn a new leaf. He is pursuing courses in Christianity. Letters from the parents of the defendant were also produced. They pleaded leniency on his behalf.
In consideration of the sentence, I have regard to the sentencing approach as laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, and HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186. As far as the trafficking charges are
concerned, having regard to the observation of the Court of Final Appeal in Seabrook v HKSAR [1999] 2 HKCFAR 184, I am of the view that the tariff set out in the recent case of HKSAR v Huang Ruifang (No. 3) [2025] 2 HKLRD 138 should be applied.
I have to assess the role of and culpability of the defendant. In the circumstances of the present case, I found that the defendant played the role of a storekeeper and a courier. There is insufficient evidence for me to find that he occupied a senior role in the hierarchy. But judging from the quantity of drugs in his possession, there must be considerable trust in him from those higher in the hierarchy.
I note the defendant does not have a clear record, but this is the first time he is convicted of the offence of trafficking in a dangerous drug. The record does not amount to an aggravating feature. Further, I do not find there exists any aggravating factors which call for an enhancement of the sentences.
In all the circumstances, having regard to the said tariff, I adopt the following notional sentences after trial for Charges 1 and 2. Charge 1, 20½ years. Charge 2, 26 years and 3 months.
For Charge 3, which alleges a conspiracy lasting from January to the date of arrest, slightly more than 3 months. In consideration, I have had regard to cases such as HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799, HKSAR v Chan Kam Loi, CACC 410/2012, and HKSAR v Chung Yat Ho, CACC 367/2010. In consideration, I bear in mind the salient matters to take into account, including the following:
(1) If the quantity of the drug involved is known, it provides the court with a ready means of identifying the appropriate starting point, though quantity is not the only fact relevant to the assessment of gravity.
(2) If the case concerns a conspiracy to traffic in an unspecified quantity of dangerous drug, the sentencing court must do its best to arrive at a starting point based on inferences and assumptions probably derived from the particular facts of the case.
(3) Unless the facts which give rise to the inferences and assumptions are clear-cut, the court will inevitably lean in favour of the defence.
(4) If the account provided by the defendant is to be taken into account, the court should note the possible margin of variation and uncertainty in the account.
(5) The appropriate degree of purity of the narcotic being trafficked.
(6) The fact that but for the admission of the defendant, the prosecution would not have known the details of the conspiracy.
In the present case, the exact quantity of drug which the defendant had dealt with under the conspiracy is not known, but there are some indications from the overall circumstances of the case. I have analysed the evidence to see whether an estimate can be made which fairly reflects the quantity of drugs which were agreed to be trafficked, bearing in mind the matters I have just mentioned.
On his confession, the defendant had been the storekeeper of that room for about three months, and according to him only he himself and the boss had the key. Although it was up to the boss to duplicate the key and give it to others, the defendant on his own had substantial control of the drug in the room. The quantity of the drugs stored in the room was large. The defendant admitted that he had on about six previous occasions received rewards for removing drugs from the room for trafficking purposes, and each time the reward was $1,000.
The quantity of drugs which the defendant trafficked in on the occasion of his arrest was very substantial. However, there is insufficient evidence for me to be sure that the drug he trafficked in on previous occasions was of similar quantity. The defendant accounted for the quantity of drugs he had previously dealt with by reference to bags.Having carefully considered what he said, I am of the view that his account was less than precise, and I see the risk in drawing influence on the quantity by a direct arithmetic calculation based on the number of bags. The prosecution has been helpful in this regard, but in reaching my conclusion, I bear in mind the principle that unless the conclusion is clear-cut, such influence and assumptions would inevitably lean in favour of the defence.
That said, the defendant admitted that he received $1,000 for each transaction, which indicates that the quantity involved would not be insignificant.
In addition to the above, I have to consider the potential harm, and note that the evidence does not indicate this conspiracy would not have continued, but for the interference of the police.
I also bear in mind the relevant tariff in Huang Ruifang (No. 3) is as follows:
(1) If the narcotic is between 5,000 and 15,000 grammes, a sentence of 24 to 27 years’ imprisonment should be considered; and
(2) If the narcotic is between 15,000 grammes and 30,000 grammes, a sentence of 27 to 30 years’ imprisonment should be considered.
The total quantity of ‘Ice’ actually found in this case was 14,466 grammes. This quantity of narcotic attracts a notional sentence after trial of at least 26 years and 9 months. Having considered the whole of the relevant circumstances, I adopt a notional sentence after trial of 28 years and 3 months for Charge 3.
The defendant pleaded guilty before a magistrate, and for this he is entitled to a one-third discount for each charge. For the conspiracy charge, I give the defendant a further discount of about 5 per cent since without his confession there is no evidence to reveal this offence.
Defendant, please stand up.
For the reason I have just said, I impose the following sentences on you. Charge 1, 13 years and 8 months. Charge 2, 17½ years. Charge 3, 17½ years.
In consideration of the proper aggregate sentence for the two trafficking charges, in the light that the dangerous drug being carried by you had obviously been taken from the room, and having regard to the observation of the Court of Appeal in HKSAR v Wan Lau Mei [2014] 4 HKC 75, I am of the view that the aggregate sentence of the two trafficking charges should be decided by considering the total quantity of the drug being trafficked in.
As mentioned earlier, the aggregate notional sentence after trial for Charges 1 and 2 is 26 years and 9 months. Having given you a one-third discount for your guilty pleas, the aggregate sentence of these two charges is 17 years and 10 months.
And having regard to the consideration principle in HKSAR v Ngai Yiu Ching, CACC 107/2011, the conspiracy offence represents further culpability on top of the two trafficking charges, and therefore a consecutive sentence subject to totality is appropriate.
In my judgment, 5 further months of imprisonment is called for. As a result, the aggregate sentence of the three charges should be 18 years and 3 months. I am of the view that the individual sentences and the aggregate sentence are just and fair in the circumstances of the case and to you.
In all the circumstances, for the reasons I have said, for convenience sake, I order the sentences of Charges 1 and 2 to run wholly concurrently, and 9 months of the sentence on Charge 3 to run consecutively to the aggregate sentence of Charges 1 and 2. You are to serve a total imprisonment term of 18 years and 3 months for the three charges.