It is alleged that he, on 27 October 2021, at Room B, 6th Floor, No. 138 Tai Nan Street, Mong Kok, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 4.223 kilogrammes of a mixture containing 3.662 kilogrammes of heroin hydrochloride.
The defendant pleaded guilty to the charge before the magistrate at the committal stage and was committed to the Court of First Instance for sentence on 5 September 2022.
Hence, he came before me today for sentence. He confirmed his plea and admission to the Summary of Facts prepared by the prosecution.
Facts of the case
The facts giving rise to this case as agreed by the defendant are as follows:
In the afternoon of 27 October 2021, a team of police officers mounted an anti-narcotics operation in the area of Tai Nan Street, Mong Kok. At around 5.44 pm that day, the police officers found the defendant walking along Tai Nan Street towards the direction of Lai Chi Kok Road and was acting in a furtive manner. One of the police officers followed him and kept him under observation.
The defendant was intercepted at about 5.50 pm outside Wah On Building at Nos. 201-203 Tong Mi Road. Upon body search, the police officers found, amongst other items, a number of rental receipts, with the defendant’s name as the tenant, for the renting of the premises at Room B, 6th Floor, No. 138 Tai Nan Street, the subject premises.
At about 6.15 pm on the same day, the defendant was taken to the subject premises by the police officers. With the keys found on the defendant, the police officers conducted a search of the subject premises. Upon search, it was found inside a suitcase placed next to a refrigerator at the premises 17 resealable plastic bags, and inside a plastic drawer next to a bag at the subject premises, one resealable plastic bag, an electronic scale and a bag of empty resealable plastic bags.
The defendant was arrested at the premises. Under caution, he told the police officers that he had received money for helping other people to carry the dangerous drugs found at the subject premises.
In the subsequent video-recorded interviews, the defendant admitted under caution that:
(1) He was engaged in the job of carrying dangerous drugs for others and was instructed by an unknown male, who contacted him through the phone, to collect the suitcase from the rooftop of a building in Yau Ma Tei. He would be paid a reward of $50,000 for doing that job.
(2) After he collected the suitcase from the building in Yau Ma Tei at about 2 pm on 27 October 2021, he brought the suitcase to the premises where he opened the suitcase. He knew that the suitcase contained packets of heroin. He took away a packet of heroin from the suitcase and put it inside the drawer next to his bed before he left the premises again. He was then arrested by the police.
It is confirmed that the resealable plastic bags found at the defendant’s premises altogether contained a total of 4.223 kilogrammes of a mixture containing 3.662 kilogrammes of heroin hydrochloride. The estimated street value of the drugs at the time of the offence was approximately $5.52 million.
The Defendant’s Background
The defendant, the court is told, is now 65 years old, born and brought up in China and came to Hong Kong in or about 1979. He received education in China up to secondary level. His father and mother had passed away. He has a younger brother, now 59 years old, who is still living in China. After his divorce with his ex-wife years ago, the defendant lived alone at the subject premises. His girlfriend occasionally visited him.
Counsel for the defendant, Ms Yip, submits that prior to his offending, the defendant was a recipient of CSSA, Social Security Allowance, for about $5,800 per month and he used to work as a part-time replacement caretaker and security guard, earning $500 per day and an additional couple of thousands of dollars per month. He has been unemployed since 2021 due to the pandemic as well as his age and poor health.
Ms Yip also submits that the defendant is suffering from what is called “three hyper series”, including hypertension, hyperlipidemia and hyperglycemia and is required to take regular medication.
The defendant has four sets of previous criminal convictions involving seven offences. His first conviction dates back to May 1981. It was for unlawful detention and he was fined $1,000 for that offence. His other three criminal convictions all took place in 1983. In April that year, he was convicted of operating a gambling establishment and was fined $5,000 and less than four months later, he was convicted of assault occasioning actual bodily harm and was fined $300 and in November that year, he was convicted of four charges of robbery and was sentenced to 10 years’ imprisonment.
Sentencing Principles and Tariffs
The courts of Hong Kong have consistently adopted a serious view and approach in handling cases of drug trafficking, particularly in relation to drugs which have serious consequences for both the individual and the community at large, including hard drugs such as heroin. This can be reflected, on the one hand, in the maximum sentence applicable to the offence of trafficking in dangerous drugs which is one of life imprisonment, and on the other hand, in the nature of the sentences and the levels of those sentences traditionally imposed by the courts for drug trafficking offences. The policy underlying the approach to sentence for drug trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines in the form of tariffs for various forms of drug trafficking offence, including heroin, the subject drug of the charge in this case.
The law in relation to sentencing of drug traffickers was explained and clarified by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, in which the Court of Appeal laid down a six-step approach in the sentencing of offenders convicted of trafficking in a dangerous drug.
The first step concerns an assessment of the gravity of the offence which is principally gauged by the type and quantity of the particular drug concerned. There is only one type of dangerous drug involved in the present case, namely heroin. The sentencing guideline that is applicable to trafficking in over 600 grammes of heroin has been set out in the case of HKSAR v Abdallah [2009] 2 HKLRD 437. According to that guideline, quantities between 1,200 grammes and 4,000 grammes of heroin would attract a starting point for sentence after trial of between 23 and 26 years’ imprisonment.
The second step in the assessment is to assess the role and culpability of the defendant. I accept that the defendant was engaged in the job of carrying dangerous drugs for others for a monetary reward and I therefore assess that his culpability as a trafficker is one of a courier.
The third step is to identify where in the relevant band of the guidelines the defendant comes, bearing in mind that it may, in appropriate circumstances, be necessary to go outside that band, whether above or below, given the particular circumstances of the commission of the offence and the role of the defendant.
The sentencing guideline for trafficking in dangerous drugs are based upon the role of a defendant as a courier or storekeeper. I therefore accept that the relevant Abdallah sentencing band of 23 to 26 years’ imprisonment for the quantity of heroin I have just mentioned should be applied in this case where the defendant’s role is one of a courier. According to that tariff, the mathematically calculated weight-based starting point is one of 25 years and 7 months.
Taking into account the role and culpability of the defendant, I do not find there to be any justification for departing from that mathematically calculated starting point within the relevant band.
The fourth step is to consider whether there is the presence of any aggravating factor which aggravates the seriousness of the offending and warrants an increase in the appropriate sentence. I have considered that the defendant was not convicted of any drug-related offence before and there was only one type of dangerous drugs, namely heroin, that he had dealt with in the present case. I therefore find that there is no warrant for any enhancement for sentence.
Fifthly, I am required to have due regard to all mitigating factors. As the Court of Appeal made clear in Herry Jane Yusuph, in cases of trafficking in a dangerous drug, personal circumstances will count for little, unless they are exceptional. It is very sensibly accepted by Ms Yip in her submission on behalf of the defendant that there are no exceptional mitigating circumstances concerning the defendant in this case to support a discount on sentence apart from the defendant’s timely and early plea of guilty at the committal stage. I am therefore prepared to give the full one-third discount to the defendant in accordance with the sentencing approach in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. I reduce the overall starting point to a term of 17 years.
The sixth and final stage of the sentencing process is to stand back and look at the overall sentence passed in order to ensure that it is a fair, just and balanced sentence in all the circumstances of the offence and the offender.
I have duly considered the reasons for the defendant’s offending as explained by Ms Yip on behalf of the defendant. The defendant, it is said, was introduced by his old school friend to work for someone who asked him to go to the rooftop of the building in Yau Ma Tei to collect that suitcase and to take it back to his own premises. The original plan was that the defendant would deliver the suitcase with all the content to somewhere else at further instructions for a reward of $50,000. The defendant frankly and responsibly admitted that he knew that the suitcase contained the dangerous drugs, but decided nonetheless to take the risk to do the job because he was in need of money. He had, however, not yet received any further instructions or reward when he was intercepted on the street and later arrested by the police.
Now, having regard to all the circumstances of this case, including the circumstances of the offence and also of the offender, I am of the view that the ultimate sentence of 17 years’ imprisonment is appropriate and is not out of proportion to the defendant’s overall criminality.
Hence, the final sentence that I would impose on the defendant is one of 17 years’ imprisonment.