COURT: The defendant pleaded guilty in the Eastern Magistrates’ Courts on 14 December 2023 to a single charge of trafficking in dangerous drug and he was committed for sentence to the Court of First Instance.
The particulars of the charge avers that on 5 May 2023, outside Ground Floor, No. 167 Yu Chau Street, Sham Shui Po, Kowloon, in Hong Kong, the defendant unlawfully trafficked in 698 grammes of a mixture containing 575 grammes of heroin hydrochloride.
The defendant comes before me this morning for sentence, having confirmed his plea and his admission of the Summary of Facts.
The Facts
The Summary of Facts reveals that in the evening of 5 May 2023, police officers were conducting anti-narcotics patrol in plainclothes in Sham Shui Po area when they saw the defendant acting furtively at the bus stop outside Ground Floor, No. 167 Yu Chau Street.
The defendant was at that time carrying a red plastic bag when the police approached him, and he pressed firmly onto his left trousers pocket. Feeling suspicious, the police intercepted him and revealed their police identities. The defendant immediately threw the red plastic bag away and ran onto the carriageway, but he was finally subdued by the police. The police then searched the red plastic bag but did not find anything. The police then searched the defendant and found on him:
(1) one packet containing 349 grammes of a mixture (in the form of a block) containing 288 grammes of heroin hydrochloride; and
(2) another packet containing 349 grammes of a mixture (in the form of a block) containing 287 grammes of heroin hydrochloride. Both packets have the numbers “360.0” written on them.
The defendant was immediately arrested and cautioned. Under caution at the scene and also later in the video interview back in the police station, he claimed that he had bought the drugs for his own consumption. Cash of HK$300 and a mobile phone was found on the defendant.
The estimated street value of the heroin was about HK$663,100.
Defendant’s Background and Mitigation
Defendant is now 57 years of age. He was born in Hong Kong and had received education up to Form 4 level. He was unemployed at the time of the arrest.
In the past, he appeared in the court for no less than 16 occasions, with 23 criminal convictions of which 8 previous records are relating to the possession of dangerous drugs and two previous records are relating to trafficking in dangerous drugs.
According to his counsel, Ms Sezen Chong, the defendant is still single and he lived with his girlfriend who is now aged 63 before his arrest. The girlfriend is now suffering from cancer.
In mitigation, Ms Chong told the court that the defendant committed the present offences because of financial difficulties. At the material times, due to the pandemic, he was badly affected financially. And without due consideration to the possible serious consequences, the defendant committed the present offence in order to earn quick money. Ms Chong submitted that the defendant is extremely remorseful now for his wrongdoings and is willing to face the consequences. He therefore decided to plead guilty and to bear the responsibility. Ms Chong also submitted a numbers of mitigation letters written by the defendant himself, his girlfriend, and also a pastor of the Christian Prison Pastoral Association Limited in prison, and also certificates that the defendant received whilst in prison. I am not going to refer to the content of the letters individually, suffice it to say that they all beg for a lenient sentence and stress that the defendant is indeed truly remorseful.
The defendant, in particular, had himself expressed deep remorse and asked the court for leniency. He stresses that he was already abandoned by his natural mother after he was born, and he resigned to his fate and his uneventful upbringing, which contributed to his criminal behaviours and misdeeds. In addition, he feels very sorry for what he had done and undertakes not to reoffend again and asks for a chance to spend the remainder of his life with his girlfriend, the woman who still does not give up on him even she had suffered cancer. He said that he would pledge to look after his girlfriend after he is released from the prison.
Consideration of Sentence
In sentencing, I shall follow the six-step approach as mentioned in the case of Herry Jane Yusuph [2021] 1 HKLRD 290.
The first step is to assess the gravity of the offence. The tariff for heroin was fixed by the Court of Appeal in the well-known case of R v Lau Tak Ming and Others [1990] 2 HKLR 370, as later modified by HKSAR v Abdallah[2009] 2 HKLRD 437. According to Abdallah, the starting point for trafficking heroin between 600 grammes and 1,200 grammes is 20 to 23 years’ imprisonment.
The quantity of heroin involved in this charge is 575 grammes and is substantial. Applying the sentencing guideline laid down by the Court of Appeal, I consider a basic starting point of 19 years and 5 months’ imprisonment is appropriate.
The second step is to assess the defendant’s role and culpability based on the evidence.
The third step is to identify where in the relevant band the defendant comes, bearing in mind 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. As was held in Herry Jane Yusuph (at paragraph 59):
“The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper; and 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.”
The assessment made in the second step is relevant in 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 the drug traffickers, namely, the courier or the storekeeper. Now the facts of this case clearly reveals that the defendant’s role is merely a courier and in my judgment there is nothing in the prosecution case to challenge this submission by the defence, and so I will simply adopt the basic starting point as stated.
The fourth step requires me to consider whether there are any aggravating factors which might require me to enhance the starting point. According to the criminal record, the defendant has 23 previous records, of which eight records are relating to possession of dangerous drugs, and two records are relating to trafficking in dangerous drugs. He was twice sentenced in the High Court for 13 years and 8 years respectively in 2004 and 2017. He was last discharged from prison in April 2022, and when he committed the present offence, he was still under the supervision order from the Prison Authority.
Obviously, the defendant still did not learn his lessons, and is a persistent offender. According to the well-known case of HKSAR v Chan Pui Chi,CACC 706/1997, his sentence should be enhanced further in order to serve as a deterrence on the defendant and also for the protection of the public.
In view of the defendant’s previous history of the offence which was appalling, I would have thought that a 12 months increase is appropriate in these circumstances. But after having regard to the already lengthy sentence that he will be imposed, in the end I decided that I would only increase the sentence by 7 months, and therefore increased it to the extent of 20 years’ imprisonment.
The fifth step is to consider all mitigating factors. As the Court of Appeal made clear in Herry Jane Yusuph, in cases of trafficking in a dangerous drug, personal circumstances will count for little unless they are exceptional. I have taken into account all that was said by Ms Chong by way of mitigation and there is also nothing in the papers which would demonstrate that there is anything exceptional which would warrant a further mitigation.
Apart from the defendant’s timely and early plea of guilty at the committal stage, I will not therefore further reduce the sentence. Although the defendant had mentioned briefly in his letter that some of the drugs he was carrying for his own consumption. But even according to the defendant in his letter, the portion is small and is far from significant.
Also he did not choose to go to the witness box to substantiate his claims, so I refuse to accept his claim on its face value, and I decline to exercise my discretion to give him any further discount on this account. After the usual one-third discount, the sentence that he will be receiving is reduced to 160 months or 13 years and 4 months.
The sixth and final step 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 the offence and the offender. In my judgment, the final sentence of 13 years and 4 months’ imprisonment for the trafficking charge is, of course, harsh for the defendant, but the offence he committed is serious and he only has himself to blame for not learning his lesson through his past punishments by the courts. He took the chance and was caught red-handed when he carried the drugs on the street and the sentence is therefore fair, just and balanced in the circumstances.
Order
Based on the above reasons, defendant is sentenced to imprisonment of 13 years and 4 months.