COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, at committal before a magistrate on 5 September 2022. The drug was heroin hydrochloride.
The charge alleged that the defendant on 16 December 2021, outside Unit P, 3rd Floor, Block 4, Kwun Tong Industrial Centre, Nos. 436-446 Kwun Tong Road, Kwun Tong, Kowloon, unlawfully trafficked in a dangerous drug namely 2,795 grammes of a mixture containing 2,334 grammes of heroin hydrochloride.
The guilty plea and the facts which the defendant admitted at committal have been confirmed by him before me today.
Facts of the case
Those facts show that in the afternoon of 16 December 2021, a team of police officers mounted an anti-narcotics operation outside Unit P, 3rd Floor, Phase 4, Kwun Tong Industrial Centre, Kwun Tong Road in Kowloon (“the premises”). At around 3.35 pm that day, the officers found the defendant moving two carton boxes out of the premises. The police officers then intercepted the defendant, who quickly abandoned the two boxes and sought to flee. He was shortly subdued by the officers outside the premises.
A search by the police revealed that the boxes contained blocks of suspected dangerous drugs concealed inside some waterproof boots. The police also found on the defendant two mobile phones and HK$3,861.50 in cash.
The defendant was arrested at about 3.40 pm for the offence of “Trafficking in a dangerous drug” outside the premises. Under caution, the defendant admitted that he helped to deliver dangerous drugs which were No. 4 heroin for others in order to earn money (“阿Sir，我為咗賺錢先幫人帶毒品啫，係4號海洛英”). The defendant admitted the boxes were taken out from the premises by him.
The police used the passcode provided by the defendant to gain entry to the premises. A search was conducted with a search warrant but no other contraband was found inside the premises.
Later, upon inspection, each of the boxes were found to contain drugs. A total of eight blocks of suspected dangerous drugs were found inside the two boxes. Upon further caution, the defendant said the boxes he carried contained No. 4 heroin which he delivered for others to earn money (“我手攞嘅兩箱紙箱入面嘅8磚4號海洛英，我係想賺錢先幫人運毒”).
In a later video-recorded interview, the defendant admitted under caution that:
(1) He came to know a person called “Ah Dick” in a bar about two months ago. He told “Ah Dick” he was in need of money and gave him his telephone number.
(2) On the day of arrest, he received a call from “Ah Dick” who asked him to deliver two boxes of heroin. He was asked to go to the premises and, with the passcode provided to him by “Ah Dick”, he went there to collect the boxes as instructed. He was then instructed to bring the boxes to the car park downstairs and wait for further instructions. He was intercepted by the police immediately when he left the premises.
(3) The defendant said he had been unemployed for about two months prior to the arrest. “Ah Dick” promised to pay a reward of $10,000 for doing that job. He had not received any money yet.
The analysis of the substance by the Government Chemist established the nature and the quantity of the drugs as set out in the charge. The street value of the drugs seized as of December 2021 was estimated to be $3.177 million.
The Defendant’s Background
According to the antecedents statement, the defendant is now aged 22 and received education up to Form 3 level.
The defendant has two prior criminal records. His first conviction was in January 2019. It was for claiming to be a member of triad society for which a 12 months’ probation order was imposed. The second conviction was recorded in June 2020. He was convicted of possessing articles with intent to destroy or damage property. He was sent to Detention Centre and was discharged on 23 October 2020.
Counsel for the defendant, Ms Tsang, submits that prior to his offending, the defendant worked as a warehouse keeper, and an apprentice as an air-conditioning technician. He has been unemployed two months prior to the offence. He tried to find odd jobs in construction sites but was unsuccessful.
Ms Tsang also submits that the defendant’s father is a construction site worker and his mother a masseuse. He has an elder sister and four younger sisters. He said that his parents became unemployed during the pandemic. He then became the sole bread earner and committed the offence to support the family.
Ms Tsang also handed up a letter written by the defendant today. In the letter, the defendant is extremely remorseful and frankly admitted the offence upon arrest. He said he became associated with bad acquaintances and consequently due to bad influence, he failed to complete his education. In the letter, he also expressed that he would continue his education and equip himself to become a useful member of the community.
Ms Tsang also submits the defendant is remorseful and that he committed the offence due to financial strain.
Sentencing Principles and Tariffs
Trafficking in a dangerous drug is a very serious 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 giving the judgment of the court, Macrae VP 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 principle of denunciation, deterrence and punishment.
The first step is to assess the gravity of the offence (see Herry Jane Yusuph at paragraph 57). Ms Tsang in her submission referred to the case of HKSAR v Abdallah [2009] 2 HKLRD 437 that the relevant sentencing band for 2,334 grammes of heroin is 23 to 26 years’ imprisonment for quantities of 1,200 to 4,000 grammes of heroin.
The second step is to assess the defendant’s role and culpability based upon the evidence. Ms Tsang also submitted that with reference to the case of Herry Jane Yusuph, the role of the defendant was purely that of a courier. I accept the defendant was engaged in the job of carrying or delivering dangerous drugs for others for a monetary reward and I therefore assess his culpability as trafficker at the same level as a courier.
The third step is to identify where in the relevant band of the guidelines the defendant comes, bearing in mind that it might, in appropriate circumstances, be necessary to go outside that band whether above or below, given the circumstances of the commission of the offence and the role of the defendant.
The sentencing guidelines for trafficking in dangerous drugs are based upon the role of a defendant as a courier or storekeeper. I therefore accept 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 24 years and 2 months.
Taking into account the role and culpability of the defendant, I do not find there to be any justification for departing from that starting point.
The fourth step is to consider if there is any aggravating factor that aggravates the offence, that aggravates the seriousness of the offending and warrants an increase in the appropriate sentence. I have considered the defendant had not been convicted of any drug-related offence before and there was only one type of drug that he had dealt with in the present case, namely heroin. I find that there is no warrant for any enhancement for sentence.
Fifth, I am required to have 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 Tsang 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 will therefore 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 16 years and 1 month.
The sixth and final stage of the sentencing process is to stand back and look at the overall sentence passed in order to ensure it is a fair, just and balanced sentence in all the circumstances of the offence and the offender.
I have carefully considered the reasons for the defendant’s offending as explained by Ms Tsang on behalf of the defendant.
The defendant, it is said, was motivated by his desire to help his family to make ends meet. The original plan was that the defendant would deliver the boxes with all the content to somewhere else at further instructions for a reward of $10,000. The defendant frankly and responsibly admitted that he knew the boxes contained heroin but nonetheless decided to take the risk to do the job because he was in need of money. He was instructed to take the boxes to the car park downstairs but had however not yet received any reward when he was intercepted outside the premises and later arrested by the police.
Now, having regard to all the circumstances of this case, including the circumstances of the offence and of the offender, I will exercise my discretion to give him a 1-month discount. I am of the view that the ultimate sentence of 16 years’ imprisonment is appropriate and is not out of proportion to the defendant’s overall criminality.
The final sentence I would impose on the defendant is one of 16 years’ imprisonment.