COURT: Defendant, on 27 June 2024, you pleaded guilty before a Magistrate at the Eastern Magistracy to two charges of trafficking in a dangerous drug. As a result of your pleas of guilty, you were committed here to the Court of First Instance for sentence.
Both charges were committed on 5 October 2022. Defendant, you admitted in the 1st charge that you were trafficking in 19.22 grammes of a mixture containing 12.59 grammes of heroin hydrochloride at No. 118 Ivy Street, Tai Kok Tsui.
In Charge 2, you admitted to trafficking in 1,939.78 grammes of a mixture containing 1,404.12 grammes of heroin hydrochloride. This was at your flat in Tai Fong Building, Tai Kok Tsui, No. 55 Ivy Street.
You admitted the Summary of Facts dated 9 April 2024. The facts in support of those two charges are as follows.
At 9.55 am on 5 October, customs officers were conducting anti-narcotics operations in Tai Kok Tsui. They intercepted you when you were on the pavement outside No. 118 Ivy Street. Upon a body search, the quantity of drugs in Charge 1 was found inside your right front trousers pocket. The drugs were contained in three resealable plastic bags which contained 130 red pellets of drugs.
The estimated street value of the drugs was $14,646.
You were arrested and admitted under caution that the red pellets were heroin. With a bundle of keys found upon your person, customs officers took you to your residence as stated in Charge 2 and used those keys to enter your flat.
Inside the bedroom of the flat, the drugs, as quantified in Charge 2, were found in two separate moisture-proof cabinets. The drugs were contained in about 16 resealable plastic bags and many of those bags contained a total of over 500 pellets, either in a red or green colour.
You were further cautioned and admitted the items in the moisture-proof cabinets were heroin. Drug trafficking paraphernalia was also found in the flat, such as amongst others, an electric scale, a vacuum sealer, a stack of resealable plastic bags, a stack of red plastic wrap, a stack of green plastic wrap, a marker, and a pack of plastic packaging.
The estimated street value of the drugs found in your flat was $1,478,112.
Defendant, you had rented this flat between 5 January 2022 to 14 January 2024 at $9,800 per month. Defendant, you are now 44 years of age. You have six previous convictions, two of which are related to dangerous drugs, which are for possession of dangerous drugs. You have received education up to Form 2 level. You are single.
I am informed by your counsel, Ms Annie Lai, that in December 2019, you became unemployed and exhausted your savings. You then succumbed to the temptation which led you to commit these current offences.
I have received a letter from yourself and your cousin, Ms Leung Tze-ying. Your letter reflects the fact that you are remorseful for your crime and explains that you had used up your savings. Under the influence of bad elements you committed these serious offences.
It appears that you are not in contact with your mother or father and have no siblings, and that the only real family you have is your very supportive cousin, Ms Leung. She has been supportive throughout and from her letter it appears that she is regretful that she was not there for you during the time that you were influenced by those bad peers. But she is now here for you until you return to society.
I am also informed by Ms Lai that you had a girlfriend with whom you intended to marry but she had left you during this financial crisis. I turn now to deal with your sentence itself.
The sentencing approach to sentencing in drug trafficking cases are the ones laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, and complemented in HKSAR v Lee Ming Ho [2024] HKCA 150. The application of the principles and steps are as follows.
The first step is to assess the gravity of the offence and identify the relevant guideline band applicable to the quantity of drugs concerned. The tariff case for the drug heroin and cocaine is set out in R v Lau Tak Ming [1990] 2 HKLR 370, but for large amounts, the tariff case is the authority of Abdallah [2009] 2 HKLRD 437.
In sentencing you, I shall take a global approach, that means I will combine the drugs in the two charges, and then sentence you individually for each charge to reflect the total combined amount. The total quantity of drugs trafficked in both Charges 1 and 2 is 12.59 grammes plus 1,404.12 grammes which equals 1,414.71 grammes. That amount falls within the band of 1,200 to 4,000 grammes, where a starting point of between 22 to 26 years’ imprisonment is appropriate.
The second step is to assess the role and culpability of you based on the evidence. Defendant, based on the evidence in this case, first of all in Charge 1, clearly you were the courier taking the drugs somewhere to supply to others when you were found on the street by the customs officers.
In respect of the 2nd charge, it is clear that you were the storekeeper and packager of the drugs, given the drug packaging paraphernalia that was found and the quantity of drugs and the two moisture-free cabinets.
The third step is to identify where in the relevant band you come, given the circumstances of the offence and your role in the offence. Taking into account this third band, I consider that an appropriate starting point, given your role, is one of 23 years and 3 months’ imprisonment.
The fourth step is the consideration of any aggravating factors. The fifth step is to consider all mitigating factors, bearing in mind in this particular branch of sentencing, personal circumstances count for little. I do not consider there to be any aggravating or personal mitigating factors in this case.
The most significant mitigating factor, defendant, is your early plea of guilty. As Ms Lai has stated, you have shown a genuine remorse from your prompt plea of guilty. For this, you will benefit from a one-third discount to your sentence.
Defendant, the starting point being 23 years and 3 months’ imprisonment is to be reduced by one-third, making a total term to one of 15 years and 6 months’ imprisonment to which you shall serve.
The sixth step is to observe the overall sentence passed to ensure it is fair, just and balanced in all the circumstances, and to this I consider it to be so.
Defendant, you are charged with two offences, and I must now sentence you separately for both offences to reflect the total sentence of 15 years and 6 months’ imprisonment.
Defendant, in Charge 1, you were trafficking in 12.59 grammes of heroin hydrochloride. That amount falls in the band of 10 to 50 grammes, which warrants a sentence of between 5 to 8 years’ imprisonment after trial. For this offence, I take a starting point of 5 years’ imprisonment, and after a one-third discount, reduce that term to 3 years and 4 months for Charge 1.
In respect of Charge 2, defendant, you were trafficking in 1,404.12 grammes of heroin hydrochloride. That amount falls in the band of 1,200 to 4,000 grammes, and I accordingly take 23 years’ imprisonment as a starting point, and after a one-third discount, reduce that term to 15 years and 4 months’ imprisonment.
To reflect the sentence of 15 years and 6 months, I order 2 months of Charge 1 to run consecutive to Charge 2, and the remaining term to run concurrent. That means, as I mentioned earlier, your total term of imprisonment is one of 15 years and 6 months’ imprisonment.