The particulars of his charge allege that on 28 February 2020, at Sai Yeung Choi Street South, Mongkok, Kowloon, the defendant unlawfully trafficked in 82.5 grammes of a mixture containing 67.3 grammes of heroin hydrochloride.
The defendant pleaded guilty to this offence 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 revealed that on 28 February 2020 at about 2 am, police officers conducted an anti-crime patrol along Sai Yeung Choi Street South, Mongkok. Upon reaching an area near Nelson Street, the police observed a private car that was parked in the lay-by area of the street. Inside the car, the defendant was sitting in the driver’s seat and smoking. He appeared nervous and kept looking around.
The police approached the defendant and requested him to alight from the vehicle so they could make inquiries of him. The defendant produced his identity card to the police officers who then conducted a body search of him. No contraband was found on his person but he was in possession of two mobile phones.
The police officers then searched the defendant’s vehicle and found under the driver’s seat a purple plastic bag containing three transparent resealable plastic bags containing the dangerous drugs, the subject of the charge. When the defendant was cautioned at the scene, he said:
“The ‘4 Chai’ are purchased for self-consumption. It is because there is shortage in the market and the price of such increases day by day. So buy more.”
In a subsequently conducted video record of interview, the defendant said he worked as a construction worker with a monthly income of around $44,000 and that the vehicle in which he was found by the police belonged to him. Finally, he said that he had the habit of consuming heroin but could not say what was his daily intake or the amount of money that he spent on the drug.
The Summary of Facts concluded with an admission by the defendant that at the material time he unlawfully trafficked in the dangerous drugs that were seized from his vehicle.
The defendant’s antecedent report reveals that he was born in Hong Kong on 10 October 1980 and so is now aged 40. He was educated up to Form 5 and has previously worked as a construction worker on a monthly income of $44,000. He is single, has a sister, and both his parents are alive.
The defendant’s criminal record reveals that as a young adult, the defendant went through a period of involvement with the law. In 1998, he was convicted of possession of a dangerous drug and placed on probation for 18 months. Between 1999 and 2001, he was convicted of five offences of theft for all of which he was placed on probation. After 2002, he has avoided any conviction.
The defendant’s counsel, Mr Selvyn So, informs me that at the time of the offence, the defendant lived with his mother in public housing in Tin Shui Wai. His parents are divorced and his mother, aged 63 years, is still working part-time. His sister, married with two children, is living separately but is in regular contact with the defendant and his mother.
The defendant went to evening school and obtained a scaffolding construction work certificate which enabled him to hold a licence for scaffolding work. He attained this by taking classes in the evening while working in the daytime. The licence gave him the opportunity for stable work and enabled him to earn about $44,000 a month at the time of the offence.
Unfortunately, the defendant became addicted to dangerous drugs from a very young age which he tells me was from 14 to 15. I am told that he is now very remorseful and is ready to turn over a new page in his life when his imprisonment is over.
In the hope that this will not be too long into the future, Mr So asked me to extend leniency to him. Mr So asserted that a significant proportion of the drugs were for the defendant’s own consumption and that the defendant, through his employment, had the funds to buy a larger amount of drugs in order to obtain a lower price for them. He said that the defendant would consume about 1 gramme a day and it was not unusual for him to buy 1 ounce equal to about 30 grammes for one month’s consumption. He asked me to make allowance for this as a mitigating factor when calculating my sentence.
In support of the defendant’s claim, the defendant himself gave evidence. In addition to that evidence, Mr So refers to the fact of the defendant having a positive drug test when he was admitted into custody and submits that there can be no doubt that his client’s assertion that he had been a long-term drug addict is true. He relies on the defendant’s stable and substantial income as evidence that the defendant could afford to buy drugs in bulk as he claimed was the situation in the present case.
I have also read the letter written to the court by the defendant’s sister. I accept what is contained in that letter and I believe that it provides a very helpful insight into the defendant’s character and into the impact that his prosecution for this offence has had upon him. I accept that he is genuinely remorseful and that he is determined to free himself from his addiction and to rehabilitate himself.
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 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 count in the indictment concerns only heroin and the quantity of this drug in which the defendant trafficked was 67.3 grammes. The relevant sentencing guideline decision for heroin is R v Lau Tak Ming [1990] 2 HKLR 370. The relevant sentencing band for 67.3 grammes of heroin is 8 to 12 years’ imprisonment for amounts between 50 grammes and 200 grammes.
The second step is to assess the defendant’s role and culpability based upon the evidence. In Herry Jane Yusuph at page 319, paragraph 59, Macrae VP said of the sentencing guidelines:
“The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper; that is the person who is delivering, distributing, or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”
Consequently, it will not be possible to properly apply the guidelines until the court takes a view of the role and culpability of the defendant. At page 320 at paragraph 61 of Herry Jane Yusuph, Macrae VP also made it very clear that a person directly involved in the selling of drugs possessed a higher level of culpability than the mere courier or storekeeper. He said:
“However, the defendant who can be shown by admission, or by direct or circumstantial evidence, to be dealing in dangerous drugs to others, sometimes referred to as actual (or direct) trafficking, is not a courier or storekeeper and is in a more serious position.”
Macrae VP went on to discuss various case authorities and at page 322, paragraph 64, he said that the principles which emerged from them were:
“...firstly, that the role and culpability of the trafficker is an important consideration in identifying the starting point for this offence. Secondly, the sentencing guidelines were intended for couriers and storekeepers of dangerous drugs, which includes those who are found dealing with dangerous drugs in circumstances falling short of actual or direct trafficking in the sense of dissemination on the streets. Thirdly, actual or direct trafficking of dangerous drugs to others on the streets is more serious than where a defendant’s purpose cannot be proved or explained.”
It is not disputed that the defendant’s role was that of a person who purchased dangerous drugs both to sell and to feed his own addiction. However, the defendant’s involvement in the sale of dangerous drugs was more potential than actual and was likely to be sales only to persons he already knew as friends or colleagues. The defendant’s culpability is that of a person who is involved in the potential sale of drugs in the circumstances I have described.
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 couriers fall into this category.
Applying the relevant heroin-sentencing band of 8 to 12 years’ imprisonment for quantities of 50 to 200 grammes produces a mathematically calculated weight-based starting point for the 67.3 grammes of narcotic of 8 years and 5 months’ imprisonment. The figure of 8 years and 5 months is agreed by the parties as the correct mathematical calculation.
Taking into account my assessment of the defendant’s role and culpability and the weight of the heroin in which he trafficked, I am of the view that I must depart from the mathematically calculated place within the relevant band and adopt a higher starting point. I adopt a starting point of 8 years and 9 months’ imprisonment.
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 previous convictions but they all relate to a period when he was a lot younger and did not involve offences that are particularly serious. He was given probation presumably to assist him to get through a difficult period in his life and it seems to have been successful in achieving his rehabilitation. I shall not regard his criminal record as an aggravating factor.
There are no other matters that could be regarded as aggravating factors and so the starting point of 8 years and 9 months’ imprisonment becomes the notional sentence after trial.
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.”
This defendant has made a claim that part of the drugs were for his own consumption. In order for such a claim to operate as a mitigating factor, it must be in respect of a significant proportion of the drugs found in the defendant’s possession. In respect of this defendant, I have heard him give evidence to support his claim. I found him to be a credible witness. It is common for drug addicts to deal in drugs in order to be able to feed their addiction and there is certainly no doubt that this defendant is a drug addict.
I accept that the defendant could afford to buy drugs in bulk because he had the financial means to do so. I also accept that when bought in bulk, the price to the buyer is cheaper. I also accept that for a person such as the defendant who consumes drugs on a daily basis, it makes sense to purchase the drugs in bulk in order to obtain the benefit of the cheaper price and to ensure that he always had the drugs he needed in hand.
I do accept that a substantial proportion of the drugs in which he was found in possession would have been used for the purpose of self-consumption and that this proportion would have been at least 50 per cent. I also accept that there existed the possibility that more than 50 per cent might have been consumed by the defendant.
This defendant is entitled to his one-third discount for pleading guilty and I shall award him a discount of 25 per cent for self-consumption. The notional sentence after trial of 8 years and 9 months’ imprisonment must first be reduced by 25 per cent to take account of the mitigating factor that a significant portion of the drugs were used for the defendant’s own consumption. This produces a figure of 6 years and 6 months which must then be discounted by one-third to allow for the plea of guilty. A one-third discount of 6 years and 6 months produces a final sentence of 4 years and 4 months’ imprisonment.
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 but that principle is relevant to any sentence which is the product of a process. At the end of that sentencing process, the judicial officer should stand back and objectively examine his proposed sentence to ensure that it is not a crushing sentence but, as I have said, one that is fair, balanced and ultimately just.
This is not an easy task as the sentence must still contain the elements of denunciation and deterrence and be appropriately punitive. I must also bear in mind that a severe or harsh sentence is not, by that reason alone, necessarily unfair, imbalanced and unjust.
Relevant to this task, Mr So asked me to have regard to the fact that on 13 July 2020, the defendant was sentenced to 6 months’ imprisonment for an offence that was committed by him two days prior to the present offence. That offence was for possession of a dangerous drug and was an immediate and direct result of his addiction to heroin. As a consequence, part of the remand period for the offence for which I must now sentence him would have been spent on serving this sentence which would have been completed before he commences the sentence for the current offence.
Earlier in these reasons for sentence, I referred to the letter written to the court by the defendant’s sister. That letter has left a deep impression on me. It is clear to me that this defendant is in need of the opportunity to rehabilitate himself and that whatever sentence I impose, it must provide encouragement for him to do so.
Tailoring the sentence to the circumstances of this offender without undermining the sentencing principles relevant to this offence, I am of the view that a fair, balanced and ultimately just sentence for this defendant is 4 years’ imprisonment. Such a sentence still contains sufficient elements of denunciation and general deterrence and is still sufficiently punitive for the offence of which the defendant has been convicted.
I therefore sentence the defendant to 4 years’ imprisonment.
Mr Chu, the sentence of the court is that you be sent to prison for 4 years. That is as lenient a sentence as I can impose upon you. You are being provided with a second chance. Much of that is due to the support of your family. Do not waste that opportunity when you are released from prison.