The particulars of his charge allege that on 1 November 2020, outside Metropark Hotel, No. 75 Waterloo Road, Ho Man Tin, Kowloon, the defendant unlawfully trafficked in 82.09 grammes of a crystalline solid containing 80.70 grammes of methamphetamine hydrochloride. I shall hereafter refer to methamphetamine hydrochloride as ‘Ice’, the name by which it is commonly known.
The defendant pleaded guilty to this offence at the first opportunity in the magistracy and was committed to the Court of First Instance for sentence. At the time of his plea, he also admitted the truth of a Summary of Facts which set out the circumstances of the commission of his offence. Before me, he confirmed both his plea and his admission of that Summary of Facts.
The Summary of Facts revealed that on 1 November 2020, at about 12.30 am, a team of police officers who were conducting an anti-drug operation saw the defendant alight from a taxi outside the Metropark Hotel. The defendant was carrying a sling bag and a paper bag and after getting out of the taxi, he looked into the paper bag. A police officer intercepted the defendant in order to make inquiries of him.
The police officer searched the paper bag that the defendant was carrying and found within it a white paper box containing a resealable plastic bag containing four resealable plastic bags containing a total of 54.8 grammes of a crystalline solid containing 53.9 grammes of ‘Ice’. Upon searching the defendant’s person, the police officer found in the defendant’s pocket three resealable plastic bags containing a total of 27.29 grammes of a crystalline solid containing 26.8 grammes of ‘Ice’. Other items found in the possession of the defendant were a mobile phone, cash of $76 and a key card to a room of the Metropark Hotel. The police subsequently searched the defendant’s hotel room but found no illegal item in it.
When the defendant was cautioned at the scene, he said that he was helping someone to distribute the ‘Ice’.
The ‘Ice’ had an estimated value of $54,000.
In a subsequently conducted video record of interview, the defendant said he was unemployed and was recruited by someone known as Fay Kuen, whom he knew in prison, to deliver the ‘Ice’ for a reward. He said he received the seven bags of ‘Ice’ from Fay Kuen on 31 October 2020 and then travelled to the hotel to await further instructions from Fay Kuen as to where he should deliver the ‘Ice’.
The Summary of Facts concluded with an admission by the defendant that at the material time, he was unlawfully trafficking in the ‘Ice’ that was seized from him.
The defendant’s antecedent report reveals that he was born in Hong Kong on 31 May 1970 and so is now aged 51. He was educated up to Secondary 3 and has previously worked as a cleaner on a monthly income of $16,000. His parents are still alive but both are quite elderly and are retired. He has one younger brother who is 47 years of age and is unemployed. The defendant lived in the Kowloon City area with his family until 1990 and then moved to Wong Tai Sin. Since 2000, he has lived alone in different hotels and has no fixed place of abode.
The defendant has a criminal record which I shall discuss in greater detail later in these reasons for sentence. He has been imprisoned a number of times and was last discharged from custody on 12 July 2017. The defendant’s counsel, Mr Wong Po-wing, informs me that the defendant was previously married but he is now divorced. He has a son who is 19 years of age. The defendant was previously engaged as a cleaner but during his employment began to suffer from sciatica, and this affected his mobility and ultimately caused him to cease his employment. Mr Wong also informs me that the defendant is a long-term drug addict. Mr Wong also informs me that the defendant’s medical conditions are not life-threatening and are treatable within the prison system.
I have also read a letter written to the court by the defendant and I shall discuss what he has said in this letter later in these reasons for sentence. However, I should indicate at this stage that I accept what is contained in that letter, and I believe that it provides a very helpful insight into the reasons why the defendant became involved in this offence.
The law relating to the sentencing of drug-trafficking offenders was recently refined and clarified by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. In that judgment, Macrae VP, in giving the judgment of the court, set out a six-step approach to the sentencing of offenders convicted of trafficking in a dangerous drug. Whilst reaffirming that for this offence, personal circumstances were of far less importance than the sentencing principles of denunciation, deterrence and punishment, there was, however, still a role for the exercise of sentencing discretion. The goal of the sentencing guidelines was to achieve reasonable consistency in general but not at the expense of preventing justice from being done in a specific individual case. They were not to be regarded as straitjackets and did cater for a discretionary element.
With these general principles in mind, I now turn to the six steps laid down in that judgment. The first step is to assess the gravity of the offence and, as Macrae VP said in Herry Jane Yusuph at page 319, paragraph 57 of the report, this is done by:
“...focusing on the harm caused or created by the offence, which is principally gauged by the type and quantity of the particular drug concerned. Accordingly, the first step when approaching sentence for an offence of trafficking in a dangerous drug is for the judge to identify the relevant guideline band or bracket applicable to the quantity of drug concerned.”
The count in the indictment concerns only ‘Ice’ and the quantity of this drug in which the defendant trafficked was 80.70 grammes. The relevant sentencing guideline decision for ‘Ice’ is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The relevant sentencing band for 80.70 grammes of ‘Ice’ is 11 to 15 years’ imprisonment for amounts between 70 grammes and 300 grammes.
The second step is to assess the defendant’s role and culpability based upon the evidence. In Herry Jane Yusuph at page 319, paragraph 59, Macrae VP said of the sentencing guidelines:
“The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper; that is the person who is delivering, distributing, or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”
Consequently, it will not be possible to properly apply the guidelines until the court takes a view of the role and culpability of the defendant.
At page 320, paragraph 61 of Herry Jane Yusuph, Macrae VP also made it very clear that a person directly involved in the selling of drugs possessed a higher level of culpability than a mere courier or storekeeper. He said:
“However, the defendant who can be shown by admission, or by direct or circumstantial evidence, to be dealing in dangerous drugs to others, sometimes referred to as actual (or direct) trafficking, is not a courier or storekeeper, and is in a more serious position.”
Macrae VP went on to discuss various case authorities. And at page 322, paragraph 64, said that the principles which emerged from them were:
“...firstly, that the role and culpability of the trafficker is an important consideration in identifying the starting point for this offence. Secondly, the sentencing guidelines were intended for couriers and storekeepers of dangerous drugs, which include those who are found dealing with dangerous drugs in circumstances falling short of actual or direct trafficking in the sense of dissemination on the streets. Thirdly, actual or direct trafficking of dangerous drugs to others on the streets is more serious than where a defendant’s purpose cannot be proved or explained.”
It is not disputed that the defendant’s role was that of a person who was helping a drug trafficker to distribute the ‘Ice’, and that he is to be treated as a courier of dangerous drugs. And this is the level at which I assess his culpability.
The third step is to identify where in the relevant band the defendant comes, bearing in mind that it might be necessary to go outside that band, whether above or below, given the circumstances of the offence and the role of the defendant. This initial or preliminary step in the determination of an appropriate sentence is described by Macrae VP as a starting point in the calculation of the defendant’s sentence as opposed to the notional sentence after trial. The starting point is identified by reference to the quantity of the dangerous drugs and the role and culpability of the defendant. The notional sentence after trial will be the figure that is reached after consideration is given to whether there are present any aggravating factors.
In respect of this third step, I do not understand the Court of Appeal to be eschewing the use of mathematics to identify where within the relevant band weight would suggest the defendant comes. Weight, of course, is just one of the factors, albeit one of the most important factors. The assessment made in the second step is also relevant to determining where within the band or outside the band the defendant comes. The Court of Appeal reaffirmed that the bands were for the least culpable of drug traffickers and couriers fall into this category.
Applying the relevant ‘Ice’ sentencing band of 11 to 15 years’ imprisonment for quantities of 70 to 300 grammes produces a mathematically calculated weight-based starting point for the 80.70 grammes of ‘Ice’ of 11 years and 2 months’ imprisonment. The figure of 11 years and 2 months is agreed by the parties as the correct mathematical calculation. Taking into account my assessment of the defendant’s role and culpability and the weight of that ‘Ice’ in which he trafficked, I am of the view that there is no reason for me to depart from the mathematically calculated place within the relevant band and I adopt a starting point of 11 years and 2 months’ imprisonment.
The fourth step requires me to consider whether there are present any aggravating factors which might require me to enhance this starting point. After completing this fourth step, I will arrive at the notional sentence after trial. If there are no aggravating factors, then the starting point will become the notional sentence after trial.
The defendant appears before me as a person who has 18 previous convictions, 15 of which are drug-related. The majority are for the offence of possession of a dangerous drug but two of them are for trafficking in a dangerous drug and they were in 2006 and 2011. For the 2006 offence, he was sentenced to 7 years’ imprisonment; and for the 2011 offence, to 44 months’ imprisonment.
From what is known of the defendant’s background and indeed from what the defendant himself says in his letter to the court, there can be no doubt that the current offence is associated with his drug addiction. In these circumstances, I regard his criminal record as an aggravating factor. There are no other matters that could be regarded as aggravating factors.
For his criminal record which clearly shows he is in need of additional deterrence in order to address his addiction and to cease his involvement in the drug trade, I enhance the starting point by 10 months. This produces a notional sentence after trial of 12 years’ imprisonment.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence after trial, bearing in mind that personal circumstances for this offence generally count for little.
In Herry Jane Yusuph, Macrae VP discussed the new sentencing regime laid down by the Court of Appeal in its decision in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 and the reference in that and other cases to the one-third discount for a plea of guilty being the “high watermark” for the discount to which a defendant is entitled on a plea of guilty. He said at page 326, paragraph 77:
“Although the ‘high watermark’ reference to discount ‘normally’ or ‘usually’ applies to the vast majority of cases in which a plea is entered at the earliest opportunity, ‘unless there are very special factors to be taken into account’, the one-third discount was not intended to be an impenetrable ceiling beyond which a judge cannot go if he has good reasons in the proper exercise of his discretion for doing so.”
The defendant is entitled to his one-third discount for pleading guilty. The notional sentence after trial of 12 years’ imprisonment, once discounted by one-third, becomes a final sentence of 8 years’ imprisonment.
The sixth step is to stand back and observe the overall sentence to ensure that it is fair, balanced and just in all the circumstance of the offence and the offender. This is particularly relevant to cases involving multiple offences where the principle of totality comes into play. But that principle is relevant to any sentence which is the product of a process. At the end of that sentencing process, the judicial officer should stand back and objectively examine his proposed sentence to ensure that it is not a crushing sentence but, as I have said, one that is fair, balanced and, ultimately, just.
This is not an easy task as the sentence must still contain the elements of denunciation and deterrence and be appropriately punitive. I must also bear in mind that a severe or harsh sentence is not, by that reason alone, necessarily unfair, imbalanced and unjust.
Relevant to this task, it seems to me it is proper for me to have regard to the defendant’s medical condition. He is suffering from problems with both his eyes and his legs, and the problems with his legs restrict his mobility and causes him to suffer significant pain. These are all treatable within the prison system and do not constitute a mitigating factor for the purpose of the fifth step laid down in Herry Jane Yusuph. But as I have said, it seems to me that I can have regard to them when considering the sixth step.
The defendant himself refers to these matters in a letter that he has written to the court. In his letter, the defendant expresses deep remorse for his actions which he attributes to the problems he has with his legs. He says in his letter that he was released from prison in 2017 and at the time intended to start his life afresh. He obtained employment as a cleaning worker but when his legs were struck by illness, he found that the difficulties he encountered in his mobility caused him to lose his job. He used up his savings obtaining treatments from Chinese medical practitioners whilst he waited to receive treatment through the government health system.
In this vulnerable position, he was approached by acquaintances from his past who were still involved in the drug trade. By assisting them, he could earn income to support himself and to meet the cost of his medical treatments. He explains his position as follows:
“At that time, as I was facing difficulty in sustaining, eating, even my basic living and that I was very scared that stopping medical treatments would make me physically handicapped for my life, as well as added with the factor that taking drugs can relieve the extreme pain on my legs, I was led astray again out of desperation and helplessness. I committed those offences not because of my greed for money but was actually due to the fact that I was both mentally and physically traumatised by illness and that I barely had means of living. So I committed the wrongs in a haste.”
The defendant concludes his letter by seeking leniency and promising that in future he would abide by the law.
This letter provides me with a better understanding of the reasons why the defendant returned to his former associates in the drug world. However, his past history does not encourage comfort. Nevertheless, if the defendant does not change his ways, then he will end up spending much of his remaining days in prison.
There is no doubt that this defendant is in need of encouragement to rehabilitate himself and that whatever sentence I impose must contain a motivating element to assist him to do so. Tailoring the sentence to the circumstances of this offender without undermining the sentencing principles relevant to this offence, I am of the view that a fair, balanced and ultimately just sentence for this defendant is 7 years’ imprisonment. Such a sentence still contains sufficient elements of denunciation and general deterrence and is still sufficiently punitive for the offence of which the defendant has been convicted.
I sentence the defendant to 7 years’ imprisonment.
Mr Suen, the sentence of the court is that you be imprisoned for 7 years. On your release in prison, your life will be in your own hands. I have tried to be lenient with you but you can rest assured that it will be the last chance you will receive from the courts. What you make of this opportunity on your release from prison is entirely in your hands.