COURT: The defendant was convicted after trial of two counts of trafficking in dangerous drugs. He was convicted on both counts by a unanimous jury.
Count 1 involved unlawfully trafficking in 499 grammes of a crystalline solid containing 496 grammes of methamphetamine hydrochloride, ‘Ice’, and Count 2 involved unlawfully trafficking on the same day as Count 1, 624 grammes of a crystalline solid containing 622 grammes of methamphetamine hydrochloride and 315 grammes of a solid containing 150 grammes of cocaine.
The Facts
The police conducted an anti-narcotics operation on 27 January 2021 targeting Block C, Chungking Mansions. They had a search warrant for a particular room in Flat C1, 11th Floor, Block C. At about 8 pm, there was a team of about 10 officers in Block C. Information was received by the arresting officer about the defendant and he went to intercept him on the staircase No. 6. As he came around the stairs leading to the 5th floor landing, he saw the defendant with his arms outstretched under the fire hydrant hung on the wall. When the defendant turned to leave, he intercepted him and, there was a struggle but he subdued him.
Another officer was directed to look in that area under the fire hydrant and he found the drugs of Charge 1 in a yellow plastic bag hidden in a crevice or a hole. It was not visible to the naked eye.
The defendant was arrested for trafficking in dangerous drugs. He was searched and a key for Room 1112 was found on his person. The defendant was taken to the 11th floor guesthouse using staircase No. 6. The key found on him opened Room 12 and the police found a small pink suitcase open on the bed with a black bag in it containing over $20,000 in cash and the drugs, ‘Ice’ and cocaine, of Charge 2.
From a registration book of the guesthouse and from evidence of particularly PW7, an employee of the owner of the guesthouse, it would appear that the defendant had rented Room 12 from July 2020.
The defendant’s evidence was that he was framed by the police, he was stopped in the stairwell for no reason, taken up to Room 12, but the police found no drugs in Room 12. The officer who searched his room left the scene and came back with a yellow plastic bag and a black bag. The defendant’s case was that the drugs were planted in that room. He had an explanation as to why he had the key to Room 12, why his DNA was found on a toothbrush in the bathroom and his footprint found on the ceramic wall inside the room. He had met a woman the night before and took her to Room 12 which was rented by a friend who lent him the room for the day and had given him the key. Prior to that day, he had never been inside Room 12. The jury obviously rejected his evidence.
Mitigation and Background
The defendant is now 44 years old, comes from Mozambique and arrived in Hong Kong in June 2018. Within weeks of arriving, he had claimed asylum and was seeking refugee status. He had a clear record in Hong Kong. It appears from the antecedent that he is married and has children in Mozambique.
As the defendant was convicted after trial, there is little Mr Bullett can say on his behalf in mitigation and he has said all he can.
Sentencing
I have considered the approach to sentencing those that traffic in dangerous drugs. With the Court of Appeal’s guidance in the most recent authority of HKSAR v Lee Ming Ho [2024] HKCA 150, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
In the approach to sentencing, a number of 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 guidelines according to the drug, or in this case, drugs found. Here, there are two types of dangerous drugs. The Government Chemist has found cocaine and ‘Ice’ in the exhibits seized.
I will add the drugs of both counts together as all were committed on the same day and closely connected. I will consider a global starting point.
The tariff for the drug cocaine of Charge 2 follows the tariff for trafficking in heroin, HKSAR v Pedro Nel Rojas [1994] 1 HKC 342. For the present purpose, the tariffs for trafficking in between 50 to 220 grammes of cocaine will attract a sentence of between 8 to 12 years’ imprisonment after trial. Here, 150 grammes of cocaine would, by itself, attract a starting point mathematically of 10 years and 8 months’ imprisonment.
The tariff for the drug ‘Ice’ is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The starting point for trafficking between 600 to 1,200 grammes of ‘Ice’ would attract a sentence of between 20 to 23 years’ imprisonment after trial. Here, having added up the ‘Ice’ of both Counts 1 and 2, totalling 1,118 grammes, this would by itself attract a starting point mathematically of 22 years and 7 months’ imprisonment.
The option of the individual approach, that is, adding together the two starting points, would be manifestly excessive. In light of the two types of dangerous drugs seized, a combined approach in calculating a starting point should be adopted. The combined approach means looking at the overall quantity of drugs rather than individual portions.
This approach usually produces the more realistic and fair sentence. The applicable sentence for the more or most serious drug is taken, and then adjusted upwards to take into account significant quantities of the less serious or smaller quantity of the other drug. Here, I will adopt the approach of the conversion rate whereby I will take a single tariff for the ‘Ice’ as its quantity is significantly more than the cocaine seized.
I will convert the 150 grammes of cocaine to ‘Ice’, which would be equivalent of 65 grammes. When I add this to the base quantity of 1,118 grammes of ‘Ice’ from both counts, the total becomes 1,183 grammes. This quantity of ‘Ice’, 1,183 grammes, warrants a mathematical starting point of 22 years and 11 months, according to the guidelines of Tam Yi Chun.
The second step of the six steps set out in Herry Jane Yusuph is to assess the defendant’s role and culpability based upon the evidence. The drugs were all found in a hole on the 5th floor wall of the staircase of the block where he lived or had or spent time in. I am sure that he had retrieved drugs of Count 1 from the bag in Room 12 to take downstairs to hide in the hole, either for him to deal with later or for someone else to come along and collect. I have assessed the defendant’s role to be equivalent of a storekeeper and courier. There is also the factor that he is a Form 8 holder and not a Hong Kong resident. He has abused the hospitality of the territory by engaging in and committing serious criminal offences of significant public concern, which is a matter going to the role and culpability of the defendant and should increase the appropriate starting point.
Therefore, taking into account the third step, his sentence is to be determined by the relevant tariffs and the quantity of dangerous drugs involved, plus a consideration of his Form 8 holder status.
Accordingly, I find the appropriate starting point to be 23 years and 2 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.
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 offences but also the defendant. It is a very significant term of imprisonment, but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced or unjust.
Accordingly, for Count 1 and Count 2, the defendant is sentenced to 23 years and 2 months’ imprisonment respectively. The sentences for both counts will be served concurrently.
The defendant is sentenced to a total of 23 years and 2 months’ imprisonment.