COURT: The defendant pleaded guilty in the Magistrates’ Court to one count of trafficking in dangerous drugs. He admits on 2 April 2021, at Room 1521, Ming Tai House, On Tai Estate, Kwun Tong, Kowloon, he unlawfully trafficked in dangerous drugs, namely, 28.91075 kilogrammes of a crystalline solid containing 28.67373 kilogrammes of methamphetamine hydrochloride, ‘Ice’, and 347 grammes of a solid containing 302 grammes of heroin hydrochloride. He was committed for sentence on 3 January 2023 and today confirms his plea as well as his agreement to the Summary of Facts.
The Facts
In the evening of 2 April 2021, the defendant was seen leaving the material premises, Room 1521, with a black bag in his hand. He was stopped and searched by police officers. They found in his bag 998 grammes of a crystalline solid containing 991 grammes of ‘Ice’ in one packet and another two plastic bags containing 2.75 grammes of a crystalline solid containing 2.73 grammes of ‘Ice’. They also found four mobile phones, two keys and cash of $26,900.
The defendant was arrested and cautioned, upon which he admitted delivering those drugs and frankly admitting there were more drugs inside his home.
The police officers gained entry into his home, using his keys, and found two open carton boxes, each containing what appeared to be packets of tea. In a total of 28 packets, they found 27.91 kilogrammes of crystalline solid containing 27.68 kilogrammes of ‘Ice’. They also found a separate plastic bag containing the heroin of this charge. In addition, they found a digital scale with traces of ‘Ice’ on it as well as gloves and some resealable plastic bags. The defendant was arrested and cautioned again and admitted a man called Kit Jai gave him the drugs to store and would call him with instructions where to deliver drugs and how much to deliver.
In a subsequent video-recorded interview, the defendant gave further details of how he met Kit Jai only months earlier. When Kit Jai found out the defendant was in need of money, he offered to pay him $50,000 for storing some cannabis for him, and the defendant agreed.
In February, Kit Jai told the defendant on 28 March 2021, two carton boxes would be delivered to the ground floor of his home. And on that appointed day, an unknown male gave the defendant two carton boxes and $50,000 in cash. Only when he opened the boxes at home did he discover white powder instead of cannabis resin.
Some of the cash found on his person was part of the $50,000 he was paid to store and deliver drugs as instructed. At the time of his arrest, the estimated retail value of the drugs seized in total was $16,188,246.
Mitigation
The defendant is now 64 years old, divorced with two adult children. He lived in the material premises alone. He previously worked as a construction site worker. He is not a man with a clear record but they only consist of two previous convictions relating to gambling in 1987 and 1999.
I have received many letters in mitigation, asking for leniency and mercy. I have read those letters: letters from the defendant himself, his ex-wife, his two daughters and other supportive family members.
Mr Lau has said all he can say on behalf of the defendant in written submissions I have received. In truth, not much can be said in mitigation for an offence of this nature consisting of such a large quantity of dangerous drugs. The defendant’s best mitigation is his plea of guilty, for which he will be entitled to a full one-third discount.
Sentencing
It is well established that trafficking in a dangerous drug is a very serious offence. 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. It was very recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.
In the approach to sentencing, six steps have been identified which the court should take. They are 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 of the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug seized or, in this case, drugs seized. There are two types of dangerous drugs.
The tariff for the drug ‘Ice’ is set out in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. However, it does not cover such a large quantity of ‘Ice’ as in this case.
The authority of HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 was adopted in Tam Yi Chun and gives further guidelines for larger quantities of narcotics. The Court of Appeal has decided that where between 4,000 to 15,000 grammes is trafficked, the starting point should be between 26 to 30 years’ imprisonment. Where, as in this case, there is over 15,000 grammes, the starting point is above 30 years at the sentencer’s discretion.
There is also a quantity of heroin and the authority of R v Lau Tak Ming & Others [1990] 2 HKLR 370 sets out the Court of Appeal guidelines for trafficking heroin. Where between 200 and 400 grammes of heroin is trafficked, the starting point should be between 15 and 20 years’ imprisonment. Here, the 302 grammes of heroin by itself would, mathematically speaking, attract a starting point of 13 years and 6 months.
Mr Lau proposes for such a large quantity of ‘Ice’ and heroin here, the starting point could quite properly come from adding up the two quantities of drugs.
I do not disagree. However, to take into account the two types of drugs here, I will take the combined approach in calculating the starting point. The combined approach means looking at the overall quantity of drugs rather than the individual portions. Here, I will adopt the approach of the conversion rate whereby I will take the tariff for ‘Ice’ as its quantity is significantly more than the heroin seized.
I will convert the 302 grammes of heroin into ‘Ice’, which would be the equivalent of 215.48 grammes of ‘Ice’. When I add this to the base quantity of 28,673.73 grammes of ‘Ice’, that comes to a total of 28,889.2 grammes of ‘Ice’. As I have said above, that will attract a starting point of over 30 years’ imprisonment.
In HKSAR v Chu Ho Wa [2022] 1 HKLRD 359, the Court of Appeal held that ‘while the appropriate bracket for more than 15,000 grammes of ‘Ice’ was over 30 years’ imprisonment at the sentencer’s discretion, anything above 30 years’ imprisonment was an extremely long sentence, and it was neither prudent nor possible to apply a mathematical increase where vast quantities were involved.’
In that case, the quantity of ‘Ice’ involved was 34,232 grammes, and the sentencing judge adopted a starting point of 33 years’ imprisonment. On appeal, in respect of the 1st and the 2nd defendant in that case, the Court of Appeal reduced that starting point to 30 years and 6 months and 31 years to take into account the limited role and the culpability of the 1st and the 2nd defendant, respectively.
In this case today, the quantity of ‘Ice’ involved is 28,889 grammes or 28.889 kilogrammes. After hearing mitigation and considering the facts of this case, I am prepared to exercise my discretion to adopt 30 years and 6 months as the starting point.
The second step of the six steps is to assess the defendant’s role and culpability based on the evidence. Some of the drugs were found in bags carried by the defendant as he left his home whilst the rest, the bulk, was found inside his home. When arrested, he made a full and frank admission. I have no reason to doubt his explanation as to how the drugs came to be in his possession and how he received a reward for being a storekeeper and a courier. Those are the roles that I attribute to the defendant for the purposes of sentencing.
Therefore, taking into account the third step of where within the guidelines the defendant should lie, his sentence will be determined by the relevant tariffs and the quantity of dangerous drugs involved.
Accordingly, I find the appropriate starting point to be 30 years and 6 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 aggravating or mitigating factors.
The defendant will benefit from a one-third discount from that starting point of 30 years and 6 months’ imprisonment. Once that discount is applied, that starting point is reduced to 20 years and 4 months’ imprisonment.
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 offence 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.
Therefore, the defendant is sentenced to 20 years and 4 months’ imprisonment. Can I ask the defendant if he understands that sentence?
ACCUSED: Understood.
COURT: Yes, I quoted the wrong band for starting point. Where - let me repeat - where between 200 and 400 grammes of heroin is trafficked, the starting point should be between 12 and 15 years, not 15 and 20 years, as I said. My calculation mathematically for 302 grammes of heroin remains the same. It would be a starting point of 13 years and 6 months. It does not affect the other calculations.