COURT: The defendant is charged with two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (“the Ordinance”) and one count of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Ordinance.
Count 1 alleges that he, on 28 September 2019, outside Kwun Tong Post Office, No. 52 Hung To Road, Kwun Tong, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 993 grammes of a solid containing 781 grammes of 3,4‑methylenedioxymethamphetamine.
Count 2 alleges that he, on 28 September 2019, near Hung To Road, Kwun Tong, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 31.80 grammes of a solid containing 27.99 grammes of cocaine and 35.73 grammes of a powder containing 31.05 grammes of ketamine.
Count 3 alleges that he, on 28 September 2019, at Room 3605, 36th Floor, Yat Lai House, Yau Lai Estate, Yau Tong, Kowloon, in Hong Kong, had in his possession a dangerous drug, namely 4.42 grammes of cannabis, in herbal form.
The defendant pleaded guilty to the charges before the Magistrate at the committal stage and was on 10 August 2020 committed to the Court of First Instance for sentence.
He comes before me today for sentence, having confirmed his plea and admission to the Summary of Facts dated 8 July 2020 read out to him in court.
The facts
The facts giving rise to the offences may be summarised as follows:
On 16 September 2019, customs officers examined two parcels mailed from Belgium to Hong Kong, consigning to a person called “Pang Chih Hung” at the address of “Kwun Tong, Kowloon, 14 Hing Yip Street, Wing Hing Industrial Building, 2/F, 4J Room”. A white envelope was found in each of the two parcels. Inside those envelopes, two aluminium bags containing two transparent re-sealable plastic bags were found, containing a total of 993 grammes of a solid containing 781 grammes of 3,4‑methylenedioxymethamphetamine (commonly known as “Ecstasy”).
On 26 September 2019, customs officers posed as postmen attended the above consignee address, and left behind parcel collection cards for the two parcels.
A controlled delivery operation was conducted on 28 September 2019. The defendant came to the Kwun Tong Post Office at around 10.40 am asking to collect the two parcels. He showed his phone, in which the screen with two parcels’ numbers were shown. The customs officers disguised as postmen showed the two parcels to the defendant. Since the consignee name was slightly different from the name on the ID card of the defendant. The officer asked if the defendant was the consignee of the two parcels. The defendant confirmed positively. Upon confirming the identities of the defendant and the two parcels, the defendant signed the receipt and collected the two parcels. The defendant then walked out of the post office and he was intercepted at the exit.
The defendant was arrested. He admitted under caution that he came to collect the parcels under the instructions of a person named “Toy” for a reward of $10,000. He would call Toy after the collection and Toy would let him know how to pass the parcels to him. He denied knowing the contents of the parcels. He said he came to Kwun Tong Post Office by his private vehicle, WA7941. He did not wish to participate in the controlled delivery operation.
Upon search of the defendant’s person, cash of HK$31,490 and four mobile phones were found on him.
The defendant was then escorted back to the private vehicle, WA7941, parked at Hung To Road, Kwun Tong. The defendant was informed that a car search was to be conducted. The defendant admitted there were dangerous drugs in the car. He pointed out various compartments near the driver’s seat and the front passenger seats. Upon search, the following items were found:
(1) 46 re-sealable plastic bags containing a total of 31.80 grammes of a solid containing 27.99 grammes of cocaine;
(2) 26 re-sealable plastic bags containing a total of 35.73 grammes of a powder containing 31.05 grammes of ketamine;
(3) A lease agreement showing that the defendant was the tenant renting the premises which was the consignee address of the two parcels.
The defendant admitted under caution that the dangerous drugs found in his car were for his self-consumption; and he was the only one who used the car.
The customs officers later searched the defendant’s residence at Room 3605, 36th Floor, Yat Lai House, Yau Lai Estate, Yau Tong on the same day. Two plastic bags containing a total of 4.42 grammes of cannabis in herbal form were found near the defendant’s bed. The defendant admitted under caution that the herbal cannabis was for his self-consumption.
At the time of the offence, the estimated street value of the drugs seized in relation to Count 1 was about HK$274,608. The estimated street value of the cocaine and the ketamine seized in relation to Count 2 was about HK$40,131.60 and HK$24,117.75 respectively. The estimated street value of the herbal cannabis seized was about HK$808.86.
The defendant now admits and accepts that at the material time he was knowingly in possession of all the dangerous drugs seized in relation to Counts 1 and 2 for the purpose of unlawful trafficking, and that he was in possession of the seized herbal cannabis found in his residence.
Mitigation
The accused is now 25 years of age, single and living previously with his father and his step mother. He was 24 years old at the time of the offences. He has no prior conviction in Hong Kong. At the time of the offence, he was unemployed.
In mitigation, counsel informed the Court that the accused was born and raised in Hong Kong, educated up to Form 6. Thereafter he pursued Diploma Yi Jin and successfully completed within a year. The defendant came from a broken family. His parents separated when he was 11 years’ old. His parents are remarried. The defendant was living with his father and step mother in Yau Tong. The defendant has low self-esteem and becomes introvert due to insufficient family care and proper adult supervision. The defendant worked as a clerical worker at a construction site but he was dismissed due to personnel relations or issues at the end of 2016. He had been unemployed since 2017.
Counsel informed the Court that the defendant had become associated with new friends who had bad influence. The defendant was introduced to cannabis. Counsel urged this Court to exercise leniency and stressed that the defendant is deeply remorseful.
I have received and considered mitigation letters from the defendant himself, the parents and the friends of the defendant.
Dealing first with the defendant, he writes that he recognises the mistakes he has made and now realises the seriousness of the conduct to which he has pleaded guilty. His letter tells me that he is deeply remorseful. He promises the Court that he will not reoffend and will equip himself with the training available in prison for his life after serving sentence to be a useful member of the community. His letter concludes with a plea to receive as low a sentence as is possible.
His parents have also written a letter to the Court. In those letters, they blamed themselves for the conduct of the defendant and for not paying sufficient care and supervision to their son. They tell me that on each visit to their son in prison, he has reiterated his remorse for his conduct and the consequences for his parents. They say, and parents are usually a pretty good judge of this, that they think he is deeply remorseful for his crimes.
I have read the letter submitted from his friends which show a different person than the one who decided to commit this crime.
I am sure that the defendant learned a bitter lesson from his conduct and in view of the sentence which is my duty to pass upon him, he will suffer the consequences of his mistakes and his remorse will be continued for some time to come. I express the hope that while he is in prison, he continues with his educational pursuits as he will need every little bit of assistance that such studies will provide him, given the hard road in the years to come. I have no doubt that he now realises the impact that he has had on his parents and himself.
And, in mitigation, counsel submitted that the defendant is not a drug addict. He committed the present offences due to financial needs. He only consumes cannabis on social occasions. The defendant did not now claim self-consumption for Counts 1 and 2. The defendant admits that all quantity of drugs is for trafficking. As for Count 3, the cannabis is for his self-consumption.
In sentencing, I have considered the whole circumstances of the case, including its nature and facts, and in particular the type and quantity of the drugs involved, the background of the defendant and the mitigation put forward on his behalf.
The defendant had trafficked in three types of dangerous drugs, namely MDMA or ecstasy, cocaine and ketamine.
As far as ecstasy and ketamine are concerned, the tariffs were set out in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. It was held that the sentence for trafficking between 10 grammes to 50 grammes ketamine would be 4 to 6 years’ imprisonment, and the sentence for trafficking between 600 grammes to 1,000 grammes, should range from 12 to 14 years’ imprisonment after trial.
As far as cocaine is concerned, it was held in Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 that the tariffs for trafficking in heroin in R v Lau Tak Ming & Ors [1990] 2 HKLR 370 should apply to trafficking in cocaine. In Lau Tak Ming, the sentence for trafficking between 10 grammes to 50 grammes of heroin would be 5 to 8 years’ imprisonment after trial. The correctness of the guidelines in relation to cocaine was confirmed in HKSAR v Abdallah [2009] 2 HKLRD 437. I see no reason in the present case to depart from these tariffs.
Count 1
In relation to Count 1, according to the sentencing guidelines for 781 grammes of ecstasy, the starting point is about 12 years and 10 months’ imprisonment.
According to the admitted Summary of Facts, it engages the issue of enhancement for the international factor. In HKSAR v Chan Ka Yiu [2018] HKCA 410, the Court of Appeal issued a guideline for the enhancement of sentence where trafficking in ketamine across the border of Hong Kong is involved. The band for a narcotic content from 500 to 1,000 grammes is between 6 months to 1 year. On a strict arithmetical calculation, the enhancement of sentence would be around 9 months. However, taking into account the role of the defendant, I would only enhance the sentence by 6 months’ imprisonment.
Count 2
In relation to Count 2, having regard to the proximity in time and the nature of the drugs, I will sentence the defendant on the basis that he was in overall possession of the drugs found in his private vehicle. I will determine the appropriate overall sentence for the total amount of drugs involved in this count.
I have had regard to the principles enunciated by the Court of Appeal in the cases of HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367; HKSAR v Yau Ka Ming, CACC 144/2013, HKSAR v Chan Yuk Leong, CACC 318/2013 and the recent case HKSAR v Islam Majharul [2020] HKCA 300 or CACC 67/2019.
Dealing with each of the quantities individually, according to the sentencing guidelines, for 27.99 grammes of cocaine, the starting point is 6 years and 4 months; for 31.05 grammes of ketamine narcotic, the starting point is about 5 years’ imprisonment.
To sentence the accused on the individual approach for Count 2 would produce a sentence which would be too high and does not properly reflect the justice of the case. To achieve a reasonable and realistic sentence, I will adopt the combined approach which involve upward adjustment from the starting point of the base drug. In the present case, both drugs attract heavy sentence, but there is a dissimilarity in the level. As cocaine is the more serious drug in terms of its potency and the sentencing tariff, I will use cocaine as the base drug in the calculation.
As stated above, the starting point for trafficking in 27.99 grammes of cocaine is 6 years and 4 months’ imprisonment. In determining the upward adjustment for the remaining 31.05 grammes of ketamine narcotic, I examined the overall starting point by checking it against the absurdity test, the conversion test and the ratio test. Under the absurdity test, the overall starting point based on the cocaine sentencing guidelines would be around 8 years and 2 months’ imprisonment. Under the conversion test, the overall starting point based on the cocaine sentencing guidelines is about 7 years and 1 month imprisonment; and based on the ketamine sentencing guidelines would be 6 years and 7 months’ imprisonment. The overall starting point based on the ratio test is about 7 years’ imprisonment.
As stated in the case of HKSAR v Yim Hung Lui Ricky (CACC 266/2011), the ‘absurdity’ is used to crosscheck the appropriateness of the total sentence. It highlights the difference between the ‘individual approach’ and the ‘combined approach’. However, as is apparent from the authorities, the issue ultimately is whether the totality is correct.
Taking all these matters into account, I consider it fair to make an adjustment of 6 months, resulting in an overall starting point of 6 years and 10 months’ imprisonment, that is, 82 months.
In the present case, two types of drugs were seized at the same time, even though separately packed but not in a prepared mixture. The defence submits that there is no evidence to support the two possible aggravating features, namely (1) the ability of the trafficker to cater for a wider market and (2) the effect on users of combination of dangerous drugs. However, as is stated in the recent case, HKSAR v Ma Sin Yee, CACC 379/2018, [2019] HKCA 942, it is a recognised aggravating factor to traffic in two different types of dangerous drugs, for the trafficker is then able to cater for a wider market than the trafficker in only one kind of drug. I will enhance the starting point by 3 months to 7 years and 1 month’s imprisonment, that is, 85 months.
I note that the defendant made a claim for self-consumption in the Summary of Facts in relation to the drugs found in the private vehicle in relation to Count 2. The guiding principles for a sentencing court have been set out in a number of Court of Appeal decisions, including HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69 HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, HKSAR v Tsoi Man Chun, CACC 414/2015, HKSAR v Kong Tat Lung [2017] 6 HKC 448 and HKSAR v Cheung Wai Man [2019] 1 HKLRD 817.
I have considered the factors to be considered by a sentencing court in establishing a claim for self-consumption, as suggested in Wong Suet Hau, namely:
(a) the quantity of drugs and their value;
(b) the general circumstances, including how the drugs are wrapped and how many wraps or packages are found;
(c) where the drugs have been discovered, whether it is a residential address owned or rented in the trafficker’s own name or in someone else’s name or whether they were being carried in a public place;
(d) the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs, and on the other hand, items which are used for the consumption of drugs;
(e) whether the defendant is an addict or otherwise accepted to have been a habitual user of the drug in question;
(f) the explanation given by the defendant following arrest;
(g) the defendant’s general means and his ability to pay for the drugs otherwise than by trafficking in them; and
(h) the defendant’s criminal record, if any, in relation to previous drug offences. Usually a court will be able to determine the issue from these factors without a Newton hearing.
It is fundamental that a claim for self-consumption needs to be established to the sentencing court’s satisfaction. Hence, a sentencing court must have a proper factual and evidential basis in accepting the contention that a significant proportion of the drugs were for the defendant’s own consumption. But that needs to be based on credible and reliable information and material that fully and properly substantiates the proportion of drugs intended for self-consumption. Mere assertions would generally not suffice. It is therefore important for a defendant in making a self-consumption claim to put before the court credible and reliable information and material in an acceptable form.
In the present case, counsel for the defendant submits that the defendant is not a drug addict. The defendant now admits that he committed the present offences due to financial needs. The defendant did not now claim self-consumption for Counts 1 and 2. He admits that all quantity for drugs is for trafficking.
In any event, taking into account the number of packets of cocaine and ketamine found in relation to Count 2, and the quantity of the drugs involved, I am not satisfied that he had a significant proportion of the drug for his own consumption. I therefore would not award any further discount for this matter.
Sentence for possession of dangerous drug
In relation to Count 3, the defendant is charged with possession of 4.42 grammes of cannabis in herbal form. He claims self-consumption. This drug was found at a location near the defendant’s bed. The amounts are quite small, and in terms of seriousness, pale into insignificance when compared with the inevitable sentences for Counts 1 and 2.
There is no tariff for possession of dangerous drugs. The circumstances in which this offence may occur are many and varied. Given the quantity of the drugs involved, the location in which the drug was found, ie near the defendant’s bed and the defendant’s claim that it was used for self-consumption, I accept his claim that the cannabis in herbal form was used for his own consumption. I will take a starting point of 3 weeks.
Discount for a timely plea of guilty
The defendant has pleaded guilty at the earliest possible moment. He is entitled to a one-third discount of his sentence. I have taken into account his personal and family circumstances and his age at the time of the offences. I do not see any good reason to exercise my discretion to award him further reduction of sentence. Having considered the whole circumstances, I consider the one-third is the extent of discount the defendant is entitled to in the present case.
Consecutive or concurrent sentence
Defence counsel accepted that Counts 1 and 2 are two separate criminal activities. The Court is entitled to consider the two counts separately and decide the period of concurrent sentence.
I have considered the approach to be taken in sentencing for multiple offences as discussed by Stock VP in HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690. He explained that when sentencing for multiple offences, the initial step is to identify the appropriate sentence for each offence and the final step is to achieve a total sentence appropriate to the culpability of the offender. The principle of totality is a tool by which to ensure that “the overall effect of sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation”.
Although the offences are quite separate in time, if these offences are being considered together, I must be careful not to pass a sentence which results in an extensive period of imprisonment for the total criminality.
Conclusion
I now proceed to determine the sentence to be imposed on the individual counts. On Count 1, given the quantity of drugs, I adopt a starting point of 12 years 10 months’ imprisonment. Taking into account the aggravating feature of international element of 6 months, it would be 13 years and 4 months’ imprisonment. Allowing a full one-third discount for the early plea, the sentence appropriate for this Count is 8 years and 10 months’ imprisonment.
On Count 2, I adopt a starting point of 6 years and 10 months’ imprisonment. Taking into account the aggravating features as mentioned for 3 months, it would be 7 years and 1 month imprisonment. Allowing the full one-third discount for the defendant’s guilty plea, the resulting sentence for this Count is 4 years and 8 months’ imprisonment.
On Count 3, I adopt a starting point of 3 weeks’ imprisonment, and discount it by one-third for the defendant’s guilty plea, the resulting sentence would be 2 weeks.
Taking into account the totality principle, I order that 1 year of the sentence imposed for Count 2 to be served consecutively to the sentence imposed for Count 1. The sentence imposed for Count 3 will be served wholly concurrent with the sentences for Counts 1 and 2. The resultant sentence is one of 9 years and 10 months’ imprisonment.
Would you please stand up, Mr Pang? For the matters I have mentioned, I sentence you to an imprisonment term of 9 years and 10 months.