COURT: The defendant pleaded guilty to one count of trafficking in dangerous drugs and one count of conspiracy to traffic in dangerous drugs in the Magistrates’ Court. He was committed for sentence on 23 November 2023 and today confirms his plea as well as his agreement to the Summary of Facts.
Facts
Early in the morning on 14 October 2022, the defendant checked into a hotel, Room 312, Casa Hotel, Nathan Road, Kowloon, and he renewed that booking on a daily basis.
On 20 October 2022, the police conducted an anti-narcotics operation in this hotel. At about 5.20 pm, the defendant came out of Room 312 and was intercepted immediately. The police entered his hotel room and found bags containing 7.6 grammes of a solid containing 4.34 grammes of cocaine and 121.8 grammes of a crystalline solid containing 80.2 grammes of methamphetamine hydrochloride, ‘Ice’, all on a plastic tray in plain sight in the hotel room.
The police found other paraphernalia for weighing and packaging dangerous drugs.
He was arrested and cautioned. Under caution, he admitted that he was trafficking in drugs to earn money because he was unemployed.
In a subsequent video-recorded interview, he elaborated further on his admission. He told the police that he had met a man about a month earlier in September 2022 who asked him if he wanted to sell drugs to earn some money. Defendant was financially strapped at the time and agreed.
The male subsequently gave the defendant some cocaine and ‘Ice’ as well as the tools to weigh and package the drugs into smaller bags. The male would communicate with the defendant and tell him when and where to deliver cocaine and/or ‘Ice’. After each delivery or transaction, he would keep a share of the proceeds and pass the balance back to that male. He sold bags of ‘Ice’ weighing 1.75 grammes each and since receiving the drugs, he sold about five to six bags of ‘Ice’ per day, earning 500 to $600 per day. Cocaine was sold in bags weighing 0.45 grammes per bag.
The defendant acknowledges that he was trafficking in the exhibits found in his hotel room and that the estimated street value of the cocaine was $6,559 if cocaine hydrochloride or $12,783 if converted to crack cocaine. The ‘Ice’ was estimated to be valued at about $83,433. He admits that he had, between a day unknown in about September 2022 to the date of his arrest, 20 October 2022, conspired with an unknown person to unlawfully traffic dangerous drugs, namely, cocaine and ‘Ice’.
Mitigation
The defendant is now 35 years old and previously had a clear record. I have been told that at the time of his arrest, he had become unemployed which was what led to the commission of these offences. Mr Wong has said all he can say on behalf of the defendant in mitigation. His best mitigation is his pleas of guilty at the earliest opportunity.
Sentencing
I have considered the approach to sentencing those that traffic in dangerous drugs, as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and very recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.
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 guidelines, 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 of the circumstances of the offence and the defendant.
For Charge 1, the first step is to assess the gravity of the offence and identify the applicable guideline according to the drug or in this case drugs found. Here, there are two types of dangerous drugs, cocaine and ‘Ice’.
The tariff for the drug cocaine follows the tariff for trafficking in heroin AG v Pedro Nel Rojas [1994] 1 HKC 342. For the present purpose, the tariff for trafficking up to 10 grammes will attract a sentence of between 2 to 5 years’ imprisonment after trial. Here, 4.34 grammes of cocaine would by itself mathematically attract a starting point of 3 years and 4 months’ imprisonment.
The tariff for the drug ‘Ice’ is set out in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, with a tariff for trafficking between 70 to 300 grammes of ‘Ice’ would attract a starting point of between 11 to 15 years’ imprisonment after trial. Here, 80.2 grammes of ‘Ice’ would by itself mathematically attract a starting point of 11 years and 2 months’ imprisonment.
Where there is more than one type of dangerous drug involved, the court can combine the drugs and calculate a starting point cross-checked against certain tests to ensure it is fair. Those would be the absurdity test, ratio test, and the conversion test.
I intend to convert all the narcotics to the most potent drug, that is ‘Ice’, and come to a starting point of 11 years and 3 months, the result of the absurdity test. Essentially, that 1 month increase from a starting point of 11 years and 2 months for the ‘Ice’ alone reflects the small amount of cocaine involved here.
The second step of the six steps set down in Herry Jane Yusuph is to assess the defendant’s role and culpability based upon the evidence. The drugs were all found in the hotel room, not on him. He did say and admit to the police that he would collect money when he made deliveries. But on the evidence, I accept that it is unlikely he made or elicited the sales himself. He was told where to go to deliver and to collect money. Therefore, I will set his role to be one equivalent of a storekeeper and courier.
Therefore, taking into account the third step, his sentence will be determined by the relevant tariffs and the quantity of dangerous drugs involved. Accordingly, the starting point would be 11 years and 3 months for Charge 1.
The fourth and fifth steps require me to consider whether there are any aggravating factors or any exceptional mitigating factors. Other than his plea at the earliest opportunity, I find neither exists here.
Charge 2
By the defendant’s own admission, he had been given drugs before his arrest. He stored the drugs, repackaged it, and delivered packages as instructed. He says he did not know the name of the man he met in September who gave him the drugs, hence his co-conspirator is a person unknown in this charge of conspiracy to traffic in dangerous drugs.
He did admit that he delivered five to six bags of ‘Ice’, weighing 1.75 grammes each, per day, but did not say how many days. He said he would package the cocaine into smaller bags of 0.45 grammes, but again did not say how many he had delivered before his arrest.
I will take into account that he had been in this hotel for six days and according to his own admissions, he delivered ‘Ice’ on each day, he would have delivered about 9.6 grammes every day or 57.75 grammes over six days.
Mr Wong for the defendant has suggested that I could add this amount, 57.75 grammes, to the total weight of cocaine and ‘Ice’ here, 84.54 grammes, before taking into account the guidelines of Tam Yi Chun, which would mathematically attract a starting point of 12 years and 3 months’ imprisonment.
This in principle would be appropriate but it does not take into account the unquantifiable amount of cocaine trafficked over a period before his arrest or even more ‘Ice’. Even then, the ‘Ice’ here of Charge 1 is not of the most pure quality.
Accordingly, for Charge 2, having taken everything into consideration, for this conspiracy to traffic in dangerous drugs, I find it appropriate to take a starting point of 12 years and 6 months’ imprisonment.
The defendant pleaded guilty at the earliest opportunity and is therefore entitled to a one-third discount on both charges.
Therefore I apply that discount to the starting point of 11 years and 3 months for Charge 1, which will reduce that to a sentence of 7 years and 6 months’ imprisonment.
I apply that same discount to the starting point of 12 years and 6 months for Charge 2, which will reduce that to a sentence of 8 years and 4 months’ imprisonment.
I have considered the circumstances of the charges and the totality principle. I will order both sentences to be served concurrently.
The last step in sentencing offences of this nature 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, not only of the offence but also the defendant. It is a significant term of imprisonment but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced or unjust.
Accordingly, for Charges 1 and 2, the defendant is sentenced to a total of 8 years and 4 months’ imprisonment.