COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug and one count of possession of a dangerous drug. On 27 November 2021, the defendant unlawfully trafficked in 89.43 grammes of a mixture containing 69.72 grammes of heroin hydrochloride (Charge 1). On the same day, the defendant possessed 3.99 grammes of a mixture containing 3.29 grammes of heroin hydrochloride (Charge 2).
The defendant was committed for sentence on 6 November 2023 and today confirms his pleas and admission of the Summary of Facts.
On 27 November 2021, the police were conducting an anti-narcotics operation in a building at 26 Fir Street, Kowloon. They found the defendant acting suspiciously. outside Room 2 of the 2nd floor. They intercepted him and searched him. They had a search warrant for those premises.
They found the keys to those premises on the defendant and entered it before conducting a search.
Inside the premises, the police found the drugs of both Charges 1 and 2 as well as paraphernalia associated with packaging dangerous drugs and “chasing the dragon” (inhaling heroin). They also found $10,000 in cash.
The defendant was arrested for trafficking in a dangerous drug and he admitted he was paid to pack heroin into smaller packets for distribution. He packed around 50 bags each day and would receive $10 for every packet he dealt with. The $10,000 found was his payment.
The defendant admitted the estimated street value of all the drugs was $125,470.29. Although all the drugs found was heroin and the majority for the purposes of trafficking, a small amount, the amount of Charge 2, was for his self-consumption.
Mitigation
The defendant is now 68 years old and was unemployed at the time of his arrest. He admits being an abuser of heroin and methamphetamine hydrochloride. He is not a man with a clear record. He has 22 previous convictions from 16 court appearances. Almost every one is related to offences of dishonesty. His last conviction was in January 2009.
Mr Lo has said all he can say in mitigation on behalf of the defendant. His best mitigation is his plea of guilty at the earliest opportunity. I have taken into account Mr Lo’s written submissions.
Trafficking Guidelines
I have considered all mitigation, facts of the case as well as the tariff guidelines for both trafficking in heroin as well as being in possession of the same drug for self-consumption.
I have considered the six-step approach to sentencing those that traffic in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. That was very recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.
In the approach to sentencing, six steps have been identified which the court should take, such as assessing the gravity of the offence and applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors and, lastly, passing a sentence which is fair, just and balanced in all the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug seized. The sentencing guideline in heroin is found in the
authority of R v Lau Tak Ming & Others [1990] 2 HKLR 370, and the starting point for trafficking between 50 to 200 grammes of heroin is 8 to 12 years’ imprisonment. Therefore, trafficking in 69.72 grammes of heroin in Count 1 would mathematically attract a starting point of 8 years and 6 months’ imprisonment.
As far as the second step is concerned, assessing his role and culpability, I accept the submission that the defendant appears to have acted as a storekeeper with an additional duty of repackaging.
Nevertheless, taking into account the third step, I will determine his sentence by the relevant tariff. I intend to take a mathematical approach to his starting point. I will take a starting point of 8 years and 6 months’ imprisonment.
The fourth and fifth steps require me to consider whether there are any aggravating factors or any exceptional mitigating factors. I do not find any aggravating or mitigating factors.
Defendant pleaded at the earliest opportunity and is entitled to a one-third discount. After that discount is applied, I sentence the defendant to 5 years and 8 months’ imprisonment for Charge 1.
The last step to take 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 not only the offence but the defendant. It is not a severe sentence in the circumstances nor is it unjust, unfair or imbalanced.
As for the 2nd charge, possession of 3.29 grammes of heroin hydrochloride, I have taken into account HKSAR v Mok Cho Tik[2001] 1 HKC 261 and the Court of Appeal’s view that a starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months.
There is also the latent risk factor to consider. That is the latent risk to society when drugs are at large. In this case, the defendant is already associated with repackaging drugs and probably other drug users. Latent-risk factor can justify an enhancement to a starting point. For this charge of possession of dangerous drugs, I will take a starting point of 18 months’ imprisonment. After the full one-third discount is applied, the defendant is sentenced to 1-year imprisonment for the 2nd charge.
The defendant for the 1st charge is sentenced to 5 years and 8 months’ imprisonment. For the 2nd charge, defendant is sentenced to 1-year imprisonment.
Taking into account the totality principle, I will order that the sentences for both charges be served concurrently.
Accordingly, the defendant is sentenced to 5 years and 8 months’ imprisonment.