The particulars of the 1st charge allege that on 7 April 2020, outside Room 5, 4th Floor, Block C, Amoy Gardens, No. 77 Ngau Tau Kok Road, Kowloon, Kowloon Bay, the defendant unlawfully trafficked in 1,350.25 grammes of a mixture containing 1,100.20 grammes of heroin hydrochloride and 0.11 gramme of a solid containing heroin.
The particulars of the 2nd charge allege that on the same date and at the room of the same location as the 1st charge, that is at Room 5, the defendant trafficked in 1,417.50 grammes of a mixture containing 1,142.67 grammes of heroin hydrochloride, 3,032.27 grammes of cannabis in herbal form, 30.59 grammes of a solid containing 25.26 grammes of cocaine, 40.70 grammes of a solid containing 28.30 grammes of fluorodeschloroketamine and 5.75 grammes of ketamine.
The defendant pleaded guilty to these offences 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 reveals that on 7 April 2020, at 0156 hours, the defendant was intercepted by police officers when he was leaving Room 5 with a garbage bag. The police officers were conducting an anti-narcotics operation and were armed with a search warrant for Room 5. They searched the garbage bag the defendant was carrying and it was found to contain the heroin and heroin hydrochloride that is the subject of the 1st charge. The bulk of the heroin was in one plastic bag and there were other plastic bags containing small amounts of heroin or heroin hydrochloride.
After being arrested and cautioned, the defendant admitted that his boss had instructed him to deliver the drugs to someone. Four keys were seized from the defendant and these enabled the police to gain access to Room 5.
Inside Room 5, the police found all the drugs that are the subject of the 2nd charge. Amongst other items also found in the room were two electronic scales, six bags of empty resealable plastic bags and one bag of empty garbage bags.
In a subsequently conducted video record of interview, the defendant said that his boss was Lung Sifu, a person he had met one or two years previously in a bar in Tsim Sha Tsui. He said he ran into this person two weeks ago in Wanchai and when this person became aware that the defendant was unemployed, he asked him if he was interested in earning quick money by trafficking in dangerous drugs. The defendant said he agreed and rented Room 5 so that he could store drugs there.
The cost of renting the room was paid by Lung Sifu but only the defendant possessed the keys to the room. He said that on 6 April 2020, Lung Sifu asked him to go to MOKO Mall to collect something from a locker which the defendant knew would be dangerous drugs. He took the bag from the locker and returned to Room 5. When he opened the bag, he found it contained cannabis, cocaine and heroin. He was following the instructions of Lung Sifu in taking the garbage bag of heroin to Mongkok when he was arrested by the police.
The estimated street values of the various dangerous drugs that the police seized were as follows: (i) heroin, $1,951,341; (ii) herbal cannabis, HK$664,067; (iii) cocaine, $39,094; and (iv) ketamine, $2,892.
The Summary of Facts concluded with admissions by the defendant that he was trafficking in all the dangerous drugs seized from outside and inside Room 5.
The defendant’s antecedent report reveals that the defendant was born on 13 October 1991 and is now 29 years of age. He was educated up to secondary school Form 5 level. At the time of his arrest, the defendant was unemployed but had previously worked as a waiter, a construction worker and a transport driver. His mother and father are divorced and the defendant was living separately from his wife with his mother. He has an elder brother. The defendant has no criminal record.
The defendant’s counsel, Mr Raymond Yu, informs me that the defendant’s wife is a mainlander who lives there and who would visit the defendant every three months on a two-way permit. They have a four-year-old baby boy whom the defendant misses very much.
Mr Yu described the defendant’s childhood as not a particularly happy one as his father deserted the family without trace when he was very young. As a consequence, the defendant’s mother had to work long hours in order to support the family. Notwithstanding these difficulties, the defendant did not go astray during his school years. Although he did not achieve high academic results at school, he was very interested in sports and was a hardworking student.
Mr Yu provided me with a bundle of materials amongst which were certificates and awards that the defendant attained during his school years. They reveal the defendant as being an impressive, polite and positive student who enthusiastically participated in school activities and charitable work. This material provides me with some insight into the defendant, and I accept that during his formative years he was a decent and law-abiding young man.
At the time of the offence, the defendant had been working as an exhibition project worker for 10 years responsible for setting up scaffolding and stages for functions and concerts and other activities by different organisations. He was earning, on average, $25,000 per month and really enjoyed working for his employer.
I have been provided with a letter from the employer and I am impressed by what he has to say. Early on in the defendant’s employment with him, this person recognised the defendant as being an employee with potential to go further. He showed himself to be hardworking and a responsible employee with an exceptional capability in handling the affairs of the company. The employer arranged for the defendant to assume roles of higher importance and on the occasion that the defendant did make mistakes, the employer found that he learned from them very quickly. The employer speaks of the defendant as having great prospects for the future and pleads with me to impose on him a lenient sentence as he is convinced that the defendant will not reoffend and is genuine in his determination to turn over a new leaf. In this respect, he says in his letter:
“I hope that your Lord would agree in giving a young person a chance to turn over a new leaf would definitely be better than locking another person away in gaol.”
However, when Hong Kong experienced social unrest in 2019, the defendant’s livelihood began to be affected. His employer’s work suffered a downturn and orders were either cancelled or suspended. This became worse with the outbreak of COVID-19 when the defendant’s income dropped to nothing. He became completely jobless even though his employer’s company continued in operation. He used up his earlier savings on family expenses. He did not tell his wife of his financial difficulties and kept remitting money to her.
It was in these circumstances of being effectively unemployed, and of needing money to take care of his elderly mother, that the defendant received the offer of employment from the person he describes as Lung Sifu. It was only because the defendant was financially desperate that he was vulnerable to this person’s tempting offer. He allowed his judgment to be clouded by what he saw as a ready solution to all his problems.
Mr Yu emphasises to me that the defendant’s financial difficulties were not of his own making and were not due to vices such as gambling or drugs. All the defendant wanted to do was to provide for his elderly mother and his wife and child.
In respect of the offence itself, Mr Yu urges me to note that the defendant’s criminal conduct lasted for only some two weeks and in this time he had retrieved drugs from Lung Sifu on only one occasion.
The two offences with which the defendant is charged concern a large amount of the same dangerous drug, namely heroin. The reality is that the defendant was in possession of all the drugs that are the subject of both charges on the same occasion and could have been charged in a single count with trafficking in all these drugs. However, that has not been done.
For the purpose of sentencing this defendant, I shall assess the sentence that is appropriate for trafficking in all of these drugs and then impose this sentence on the defendant by making orders of consecutiveness in respect of the individual sentences that I deem appropriate for each charge. In this way each charge will have a separate sentence appropriate for the drugs particularised in the respective charge.
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 a 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 1st charge concerns only heroin and it is heroin which is the predominant narcotic in the 2nd charge together with some cocaine. As heroin and cocaine are regulated by the same guidelines, I shall add the cocaine to the heroin. In respect of the 1st charge, the quantity of heroin and heroin hydrochloride in which the defendant trafficked is 1,100.31 grammes, and in respect of the 2nd charge, when the heroin and cocaine are added together there is a total quantity of 1,168.23 grammes of narcotic.
For the 2nd charge, there is also a large quantity of herbal cannabis and a small quantity of ketamine and this must be factored into the sentence.
When all of the narcotic for the 1st and 2nd charges are added together, the total amount of narcotic is 2,268.54 grammes.
The relevant sentencing guideline decision for heroin and cocaine is HKSAR v Abdallah [2009] 2 HKLRD 437. The relevant Abdallah sentencing band for the quantity of narcotic in both Charge 1 and Charge 2 is 20 to 23 years’ imprisonment for quantities of 600 to 1,200 grammes. The relevant sentencing band for the total amount of narcotic contained in both charges is 23 to 26 years’ imprisonment for quantities of 1,200 to 4,000 grammes.
The second step is to assess the defendant’s role and culpability based upon the evidence. It is not disputed that the defendant’s role was that of a person who agreed to store dangerous drugs on behalf of a person who trafficked in dangerous drugs and deliver the dangerous drugs in accordance with the instructions that he received. I assess his culpability as trafficker at the same level as a storekeeper and courier but because he was performing both these functions which included renting premises and repacking the heroin, his culpability is greater than a person who was simply performing one of them.
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 storekeepers, and couriers fall into this category.
Applying the relevant Abdallah sentencing band of 20 to 23 years’ imprisonment for quantities of 600 to 1,200 grammes produces a mathematically calculated weight-based starting point for the narcotic in Charge 1 of 22 years and 6 months’ imprisonment.
Charge 2 is more complicated because other drugs are present. It is not disputed that the appropriate test to apply in respect of those other drugs is the conversion test and that once this is done, the resulting figure is 22 years and 9 months’ imprisonment. Applying the relevant Abdallah sentencing band of 23 to 26 years’ imprisonment for quantities of 1,200 to 4,000 grammes of narcotic produces a mathematically calculated weight-based starting point for the total narcotic and other drugs in both charges results in an overall sentence of 24 years and 2 months’ imprisonment.
Each of these three figures of 22 years and 6 months, 22 years and 9 months and 24 years and 2 months are agreed by the parties as the correct mathematical calculations.
Taking into account my assessment of the defendant’s role and culpability and the weight of the cocaine in which he trafficked, I am of the view that the fact that the defendant was providing services of both storekeeper and courier adds to his culpability and justifies departing from the mathematically calculated place within the relevant band. I add 4 months to the respective starting points for Charge 2 and for the global starting point.
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 no previous conviction for trafficking in a dangerous drug. The only aggravating factor is that the defendant was trafficking in a multitude of different dangerous drugs. For this aggravating factor I enhance the starting point for the 2nd charge by 6 months. Thus the notional sentence after trial for the 1st charge remains unchanged and for the 2nd charge becomes 23 years and 7 months’ imprisonment and for the total amount of drugs becomes 25 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 one-third discount which an offender receives for his timely plea of guilty would generally encompass the bulk of the mitigating factors available to a defendant, such as prior good character, remorse and impecuniosity as a motivation for the offence.
I cannot see that there is present in respect of this defendant anything that would be characterised as a “very special factor” which would justify me going beyond the one-third discount for the matters referred to by Mr Yu when those matters are considered either singly or cumulatively. A one-third discount of the notional sentences after trial for the charges produces sentences of 15 years’ imprisonment for the 1st charge, 15 years 8 months’ imprisonment for the 2nd charge, and 16 years and 8 months for the global amount of drugs.
The sixth step is to stand back and observe the overall sentence to ensure that it is fair, balanced and just in all the circumstances of the offence and the offender. This is particularly relevant to cases involving multiple offences where the principle of totality comes into play to ensure that the final sentence is not a crushing sentence but, as I have said, one that is fair, balanced and ultimately just.
As earlier mentioned, Mr Yu has emphasised the strong remorse that the defendant genuinely feels which is reflected in what his employer has written to me in his letter. The letter provides, I believe, real insight into the defendant and I believe what he has written in it.
The defendant is 29 years of age and has a four-year-old son who needs the presence of his father in his life. A sentence as long as 16 years and 8 months will mean that even if he receives a further discount from the Commissioner of the Correctional Services for good behaviour while serving his sentence, he will still not be discharged from custody until he is in his late 30s.
The sentence I impose must still contain the elements of denunciation and deterrence and be appropriately punitive. This is not an easy task. This defendant does not need to be deterred as I am confident there is no risk that he will reoffend.
The question for me is whether the discounted notional sentences after trial for the individual charges and for the global amount of dangerous drugs will be crushing on this defendant. I am of the view that they will be and that an appropriate and total sentence for this defendant is 15 years’ imprisonment. Such a sentence still contains sufficient elements of denunciation and general deterrence and is still sufficiently punitive for these offences.
In order to achieve this sentence, I impose the following sentences on the defendant. For the 1st charge, I sentence the defendant to 15 years’ imprisonment. For the 2nd charge, I sentence the defendant to 15 years’ imprisonment, and I further order that both sentences be served concurrently with each other.
Mr Lau, you have heard the sentences. The total sentence imposed upon you is 15 years’ imprisonment. With good behaviour in prison, you should be out much earlier and your counsel will no doubt explain that to you.